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Full-Text Articles in Law

Lest We Be Lemmings, Claire Wright Jan 2024

Lest We Be Lemmings, Claire Wright

Faculty Articles

Lest We Be Lemmings concerns global warming, which is the most grave threat facing humanity today. In this article, I first: (1) discuss how the U.S. Congress and the U.S. Executive Branch, for decades, have been aware of the existence of global warming and its main cause – the burning of fossil fuels and emission of CO2 - but have consistently failed to regulate the fossil fuel industry, reduce the lucrative subsidies that they provide to the fossil fuel industry, and hold the fossil fuel industry responsible for global warming; (2) explain how the fossil fuel industry, for decades, …


Deities’ Rights?, Deepa Das Acevedo Jan 2023

Deities’ Rights?, Deepa Das Acevedo

Faculty Articles

A brief commotion arose during the hearings for one of twenty-first-century India’s most widely discussed legal disputes, when a dynamic young attorney suggested that deities, too, had constitutional rights. The suggestion was not absurd. Like a human being or a corporation, Hindu temple deities can participate in litigation, incur financial obligations, and own property. There was nothing to suggest, said the attorney, that the same deity who enjoyed many of the rights and obligations accorded to human persons could not also lay claim to some of their constitutional freedoms. The lone justice to consider this claim blandly and briefly observed …


The Executive Branch Anticanon, Deborah Pearlstein Nov 2020

The Executive Branch Anticanon, Deborah Pearlstein

Faculty Articles

Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …


Getting Past The Imperial Presidency, Deborah Pearlstein Jan 2019

Getting Past The Imperial Presidency, Deborah Pearlstein

Faculty Articles

In an age in which the “imperial presidency” seems to have reached its apex, perhaps most alarmingly surrounding the use of military force, conventional wisdom remains fixed that constitutional and international law play a negligible role in constraining executive branch decision-making in this realm. Yet as this Article explains, the factual case that supports the conventional view, based largely on highly selected incidents of presidential behavior, is meaningless in any standard empirical sense. Indeed, the canonical listing of presidential decisions to use force without prior authorization feeds a compliance-centered focus on the study of legal constraint rooted in long-since abandoned …


Constitutional Shapeshifting: Giving The Fourth Amendment Substance In The Technology Driven World Of Criminal Investigation, Gerald S. Reamey Jun 2018

Constitutional Shapeshifting: Giving The Fourth Amendment Substance In The Technology Driven World Of Criminal Investigation, Gerald S. Reamey

Faculty Articles

For the first hundred years of the Fourth Amendment's life, gains in the technology of surveillance were modest. With the advent of miniaturization and ever-increasing sophistication and capability of surveillance and detection devices, the Supreme Court has struggled to adapt its understanding of "search" to the constantly evolving devices and methods that challenge contemporary understanding of privacy. In response to surveillance innovations, the Court has taken varying positions, focusing first on property-based intrusions by government, then shifting to privacy expectations, and, more recently, resurrecting the view that a trespass to property can define search.

This article surveys this constitutional odyssey, …


Developing Environmental Law For All Citizens, Patricia W. Moore, Eliana S. Pereira, Gillian Duggin Jan 2015

Developing Environmental Law For All Citizens, Patricia W. Moore, Eliana S. Pereira, Gillian Duggin

Faculty Articles

On 20 May 2002, Timor-Leste became a country. Its Constitution, which came into force on 20 May 2002, is based on civil law, with many similarities to Portugal's legal system. The Constitution also laid the foundation for environmental law, which the government has been developing ever since. This overview of the development of environmental law in Timor-Leste describes the constitutional provisions that are the source of environmental law in the country; presents the policy basis for environmental law; reviews the legal instruments governing the environment that the government has adopted since 2002; introduces draft laws under consideration at the end …


Universities As Constitutional Law Makers (And Other Hidden Actors In Our Constitutional Orders), Adam J. Macleod Jan 2014

Universities As Constitutional Law Makers (And Other Hidden Actors In Our Constitutional Orders), Adam J. Macleod

Faculty Articles

In the stories told by opinion makers and many law professors, American constitutional law is concerned with two things-individual rights and the powers of government-and it is settled by the Court, which was established by Article III of our national Constitution. In those now-familiar tales, the United States Supreme Court creates constitutional law when heroic individuals assert their fundamental rights against an overreaching state and when Congress, state legislatures, and executive agencies are called upon to justify their expert enactments to an overreaching judiciary. To settle these constitutional disputes the Court looks either to the text of the written Constitution …


Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan Jan 2013

Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan

Faculty Articles

In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a …


Catholicism And Constitutional Law: More Than Privacy In The Penumbras, Bill Piatt Jan 2010

Catholicism And Constitutional Law: More Than Privacy In The Penumbras, Bill Piatt

Faculty Articles

No abstract provided.


Abandoning Recess Appointments: A Comment On Hartnett (And Others), Michael Herz Jan 2005

Abandoning Recess Appointments: A Comment On Hartnett (And Others), Michael Herz

Faculty Articles

No abstract provided.


Private Parties As Defendants In Civil Rights Litigation: Introduction, Myriam Gilles Nov 2004

Private Parties As Defendants In Civil Rights Litigation: Introduction, Myriam Gilles

Faculty Articles

No abstract provided.


Hate Speech In Constitutional Jurisprudence: A Comparative Analysis, Michel Rosenfeld Jan 2003

Hate Speech In Constitutional Jurisprudence: A Comparative Analysis, Michel Rosenfeld

Faculty Articles

The United States protects much hate speech that is banned in other Western constitutional democracies and under international human rights covenants and conventions. In the United States, only hate speech that leads to "incitement to violence" can be constitutionally restricted, while under the alternative approach found elsewhere, bans properly extend to hate speech leading to "incitement to hatred." The article undertakes a comparative analysis in light of changes brought by new technologies, such as the internet, which allow for worldwide spread of protected hate speech originating in the United States. After evaluating the respective doctrines, arguments and values involved, the …


Solving The Apprendi Puzzle, Kyron Huigens Jan 2002

Solving The Apprendi Puzzle, Kyron Huigens

Faculty Articles

No abstract provided.


Intergroup Rivalry, Anti-Competitive Conduct And Affirmative Action, Michelle Adams Jan 2002

Intergroup Rivalry, Anti-Competitive Conduct And Affirmative Action, Michelle Adams

Faculty Articles

Significant research in social science describes racial inequality as grounded in notions of group identity and group conflict. Sociologists and social psychologists who study discrimination and prejudice have moved away from theories that explain prejudice solely as a problem of individual perception, and toward theories that view individual cognitive processes as related to group membership. While present social science yields no consensus view, there is a striking emphasis in the current literature on group identity theories as "powerful determinants of behavior." These theories, which stress the importance of prejudice as a group-based phenomenon and focus on "social-structural theories of group …


Are Tax "Benefits" For Religious Institutions Constitutionally Dependent On Benefits For Secular Entities?, Edward A. Zelinsky Jul 2001

Are Tax "Benefits" For Religious Institutions Constitutionally Dependent On Benefits For Secular Entities?, Edward A. Zelinsky

Faculty Articles

The Supreme Court generally conditions tax exemptions, deductions, and exclusions for religious organizations and activities upon the simultaneous extension of such benefits to secular institutions and undertakings. The Court's position flows logically from its acceptance of the premise that tax exemptions, deductions, and exclusions constitute subsidies. However, the "subsidy" label is usually deployed in a conclusory and unconvincing fashion. The First Amendment is best understood as permitting governments to refrain from taxation to accommodate the autonomy of religious actors and activities; hence, tax benefits extended solely to religious institutions should pass constitutional muster as recognition of that autonomy.


Church-State Constitutional Issues: Making Sense Of The Establishment Clause And That Godless Court?: Supreme Court Decision On Church-State Relationships (Book Reviews), Michael Ariens Jan 2001

Church-State Constitutional Issues: Making Sense Of The Establishment Clause And That Godless Court?: Supreme Court Decision On Church-State Relationships (Book Reviews), Michael Ariens

Faculty Articles

No abstract provided.


Comment: Human Rights, Nationalism, And Multiculturalism In Rhetoric, Ethics, And Politics: A Pluralist Critique, Michel Rosenfeld Jan 2000

Comment: Human Rights, Nationalism, And Multiculturalism In Rhetoric, Ethics, And Politics: A Pluralist Critique, Michel Rosenfeld

Faculty Articles

No abstract provided.


A True Crime: A Review Of Janet Malcolm, The Crime Of Sheila Mcgough (Book Review), Michael Ariens Jan 1999

A True Crime: A Review Of Janet Malcolm, The Crime Of Sheila Mcgough (Book Review), Michael Ariens

Faculty Articles

No abstract provided.


It Is Lawyers We Are Funding: A Constitutional Challenge To The 1996 Restrictions On The Legal Services Corporation, Jessica A. Roth Jan 1998

It Is Lawyers We Are Funding: A Constitutional Challenge To The 1996 Restrictions On The Legal Services Corporation, Jessica A. Roth

Faculty Articles

No abstract provided.


Justices At Work: An Introduction, Michel Rosenfeld Jan 1997

Justices At Work: An Introduction, Michel Rosenfeld

Faculty Articles

No abstract provided.


An Introduction To Mandatory Hiv Screening Of Newborns: A Child’S Welfare In Conflict With Its Mother’S Constitutional Rights—False Dichotomies Make Bad Law, Paris R. Baldacci Jan 1996

An Introduction To Mandatory Hiv Screening Of Newborns: A Child’S Welfare In Conflict With Its Mother’S Constitutional Rights—False Dichotomies Make Bad Law, Paris R. Baldacci

Faculty Articles

No abstract provided.


The Identity Of The Constitutional Subject, Michel Rosenfeld Jan 1995

The Identity Of The Constitutional Subject, Michel Rosenfeld

Faculty Articles

No abstract provided.


Rewiring The First Amendment: Meaning, Content And Public Broadcasting, Donald W. Hawthorne, Monroe E. Price Jan 1994

Rewiring The First Amendment: Meaning, Content And Public Broadcasting, Donald W. Hawthorne, Monroe E. Price

Faculty Articles

No abstract provided.


Derridoz Law Written In Our Heart/Land: “The Powers Retained By The People”, Emily A. Hartigan Jan 1993

Derridoz Law Written In Our Heart/Land: “The Powers Retained By The People”, Emily A. Hartigan

Faculty Articles

Section 26 of the Nebraska Constitution, much like everything affirmative that humans do, is immediately flawed. The flaw sits literally right below this heartfelt declaration of the people’s sovereignty, in an annotation provided for section 26 in the Revised Statutes of Nebraska. This annotation cites State v. Moores, but recites also that the case was overruled, which is wrong for a number of reasons. First, not only does this conflict with other annotations to the same Bill of Rights citing the very same case, but it also ignores the inadequacy of the supposed “overruling” and the existence of an explicit …


Constitutional Law And The Myth Of The Great Judge, Michael S. Ariens Jan 1993

Constitutional Law And The Myth Of The Great Judge, Michael S. Ariens

Faculty Articles

One of the enduring myths of American history, including constitutional history, is that of the “Great Man” or “Great Woman.” The idea is that, to understand the history of America, one needs to understand the impact made by Great Men and Women whose actions affected the course of history. In political history, one assays the development of the United States through the lives of great Americans, from the “Founders” to Abraham Lincoln to John F. Kennedy. Similarly, in constitutional history, the story is told through key figures, the “Great Judges,” from John Marshall to Oliver Wendell Holmes to Earl Warren. …


Executive Autonomy, Judicial Authority And The Rule Of Law: Reflections On Constitutional Interpretation And The Separation Of Powers, Michel Rosenfeld Jan 1993

Executive Autonomy, Judicial Authority And The Rule Of Law: Reflections On Constitutional Interpretation And The Separation Of Powers, Michel Rosenfeld

Faculty Articles

No abstract provided.


Dutiful Justice (Book Review), Michael S. Ariens Jan 1991

Dutiful Justice (Book Review), Michael S. Ariens

Faculty Articles

Sheldon Novick’s biography, Honorable Justice: The Life of Oliver Wendell Holmes, is a traditional biography of one of the most important public figures in the United States since the Civil War.

Although the author disclaims it, Honorable Justice is a defense of Holmes. Novick writes of some of Holmes’ faults, but too often Holmes’ human imperfections are defended as strengths. It appears that Novick was trying hard to defend Holmes from late twentieth century critiques. This defense of Holmes seems a misguided attempt to re(de)ify Holmes to a group of readers which will likely include a large proportion of skeptical, …


Attorney As Interpreter: A Return To Babble, Bill Piatt Jan 1990

Attorney As Interpreter: A Return To Babble, Bill Piatt

Faculty Articles

Attorneys should not represent their clients and simultaneously act as interpreters. The harm far outweighs the benefit when an attorney acts as an interpreter for a client in litigation. In 1970, the Second Circuit Court of Appeals in Negron v. New York determined that the Sixth Amendment's confrontation clause requires that non-English speaking defendants be informed of their right to simultaneous interpretation of proceedings at the government's expense, however the use of an interpreter is still at the trial court's discretion.

Courts will ordinarily not appoint an interpreter in the absence of a request to do so, but the failure …


Law And Mystery: Calling The Letter To Life Through The Spirit Of The Law Of State Constitutions, Emily A. Hartigan Jan 1988

Law And Mystery: Calling The Letter To Life Through The Spirit Of The Law Of State Constitutions, Emily A. Hartigan

Faculty Articles

If law is anything today, it is dispirited. It lacks life, vitality, enchantment, and vision. Neither law nor its practitioners sing—or even hum. However, there is something more, already present in America’s state constitutions if practitioners dare turn to hear it. It is the voice of the spirit of the laws of the land. It sings of a vision.

There is a strain of constitutional law, anchored by actual judicial language about the spirit of law, which participates in the discourse identified in two key law review articles—Suzanna Sherry’s “The Founders’ Unwritten Constitution,” and Thomas Grey’s “Origins of the Unwritten …


Suicidal Rights, Michael S. Ariens Jan 1988

Suicidal Rights, Michael S. Ariens

Faculty Articles

The legal debate regarding the right to commit suicide requires a critical review of the relationship between the individual and the community in present liberal political thought. Modern liberal political thought postulates that the government or community must be neutral about what is good both for members of the community and the community itself. It also postulates that there exists a sphere of action which affects solely an individual.

The neutrality postulate and the harm of self/harm to others dichotomy are best explicated by John Stuart Mill in his essay On Liberty, in which Mill separates and categorizes the individual …