Law Commons^™

Discussant, In Response To Justice Richard J. Goldstone, 1998 Otto L. Walter Lecture: International Human Rights At Century’S End, Stephen Ellmann

Articles & Chapters

No abstract provided.

Safeguarding Constitutional Rights: The Uses And Limits Of Prophylactic Rules, Brian K. Landsberg

McGeorge School of Law Scholarly Articles

No abstract provided.

Is There An Obligation To Listen?, Leslie Gielow Jacobs

McGeorge School of Law Scholarly Articles

No abstract provided.

Pledges, Parades, And Mandatory Payments, Leslie Gielow Jacobs

McGeorge School of Law Scholarly Articles

This Article examines the Supreme Court's treatment of compelled expression cases. It sets forth the speech restraint framework by describing the crucial determinations guiding judicial analysis. It then explains the current results, reasoning, and incoherence of the compelled expression cases. This Article isolates and evaluates the variables that the Court claims are significant to compelled expression analysis. It then adjusts the variables according to the free speech clause values evident in speech restraint analysis to create a coherent doctrine of compelled expression. This doctrine both places past cases within a consistent framework and provides a structure for evaluating future compelled …

How Imperial Is The Supreme Court? An Analysis Of Supreme Court Abortion Doctrine And Popular Will, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

The Constitutionalization Of Ineffective Assistance Of Counsel, Richard Klein

Scholarly Works

No abstract provided.

The Right To Die And The Ninth Amendment: Compassion And Dying After Glucksberg And Vacco, Robert M. Hardaway, Miranda K. Peterson, Cassandra Mann

Sturm College of Law: Faculty Scholarship

Part I reviews the historical development of physician assisted suicide, describes current medical practices and physicians' attitudes, and outlines the related legal debate over euthanasia. Part II explains the statutory and case law precedent of physician-assisted suicide. This Part also examines the factual and procedural history of the Supreme Court's decisions in Glucksberg and Vacco. Part III explores the Ninth Amendment issues which the Court failed to address in Glucksberg and Vacco, and argues that a right to die exists under existing Ninth Amendment precedent. This part also provides recommendations for a model Dignity in Dying statute that would comply …

Local Government Land Use Restrictions And Selected First Amendment Issues, Barbara Jo Nelson

LLM Theses and Essays

A local government's power to enact zoning regulations falls within the general power to provide for the health, safety, and welfare of its citizenry. This thesis addresses a few selected First Amendment issues as they apply to zoning and land use restrictions in Georgia. Free speech review of zoning ordinances applies to zoning for adult sex businesses, such as adult book stores and cinemas. The First Amendment balancing test that is applicable to adult entertainment ordinances is discussed in Chapter One. The free speech impact of restrictions on signs and billboards is discussed in Chapter Two. Finally, in Chapter Three, …

State And Federal Constitutional Law Developments, Rosalie Levinson

Law Faculty Publications

No abstract provided.

Some Realistic Thinking About Secular Effects, Paul E. Salamanca

Law Faculty Scholarly Articles

Notwithstanding complaints about incoherence in Establishment Clause doctrine, courts by and large administer the Clause responsibly. They do so by mediating between a number of powerful considerations, none of which can ever be entirely disregarded. These considerations include, but are not limited to, separation of church and state, the value of religiosity, the imperative of affording equal treatment to religious and similarly situated nonreligious entities, and the proper role of courts in a democratic political system. This is not to say that courts cannot overstep their bounds and provoke an adverse reaction from other powerful elements within the polity. It …

Antidiscrimination Laws & Artistic Expression, Steven H. Shiffrin, Gregory R. Smith

Cornell Law Faculty Publications

The Sound Of Silence: The Supreme Court And The Second Amendment - A Response To Professor Kopel, David S. Yassky

Elisabeth Haub School of Law Faculty Publications

Until now, the revisionists have based their argument entirely on claims about the intentions of those who framed and ratified the Second Amendment. Revisionists have heretofore conceded that the courts have rejected their approach; indeed, the basic structure of the revisionist argument has been: The Founders intended an individual right to firearm possession; the courts (abetted by the academy) have all but nullified the Amendment by treating it as a mere safeguard for militia; the courts should recognize their error and strike down gun control laws.

With his latest contribution, David Kopel seeks to open a second front in the …

The American Tradition Of Language Rights, ¡Que Viva Texas!: The Forgotten Right To Government In A “Known Tongue”, Jose R. "Beto" Juarez

Faculty Scholarship

No abstract provided.

Menacing Speech And The First Amendment: A Functional Approach To Incitement That Threatens, John A. Rothchild

Law Faculty Research Publications

Constitutional rules of protection cannot be based on purely formal distinctions among modes of utterance that are inattentive to the way the communications actually function....

The Remand That Made The Court Expand, Maxwell L. Stearns

Faculty Scholarship

No abstract provided.

Supervisory Liability In Section 1983 Cases, Kit Kinports

Journal Articles

The topic of this presentation is supervisory liability in Section 1983 cases. Assume for present purposes that a plaintiff's constitutional rights have been violated - that some state official has acted in violation of the Constitution. The question to be addressed here is whether that state official's supervisors can be held liable for damages stemming from the constitutional violation.

Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports

Journal Articles

When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, …

Nineteenth-Century Orthodoxy, Richard B. Collins

Publications

No abstract provided.

"High Crimes And Misdemeanors": Recovering The Intentions Of The Founders, Gary L. Mcdowell

Law Faculty Publications

Such serious charges by so many distinguished historians demand a careful consideration of what the Founders meant by "high Crimes and Misdemeanors": Were they only indictable crimes or did they include what one of the Framers called "political crimes and misdemeanors?" Were they offenses that a President would commit only in "the exercise of executive power" or did they also include a President's malfeasance committed in his private capacity? Were they subject to a reasonably fixed meaning or were they to be determined simply by the exercise of the "awful discretion" of those in Congress called upon to impeach and …

The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii

All Faculty Scholarship

Choice of law is a mess. That much has become a truism. It is a "dismal swamp," a morass of confusion, a body of doctrine "killed by a realism intended to save it," and now "universally said to be a disaster." One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdeterminative Restatement (Second) of Conflict of Laws. Another would be to examine the Supreme Court's abdication of the task of articulating constitutional constraints on state choice-of-law rules. This article will do both. At the outset, though, I want to suggest that one …

The Architecture Of Judicial Independence, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Be Careful What You Wish For, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

When Federal Law Is Also State Law: The Implications For State Constitutional Law Methodology Of Footnote 7 In Commonwealth V. Matos, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Sovereignty, Compliance, And The World Trade Organization: Lessons From The History Of Supreme Court Review, Mark L. Movsesian

Faculty Publications

One of the World Trade Organization’s (WTO's) more remarkable and controversial innovations is its mechanism for resolving trade disputes among member states. Traditionally, states have resolved such disputes in "pragmatic" fashion, through negotiation and compromise informed by the relative power of the parties involved. But no longer: the WTO's Understanding on Rules and Procedures Governing the Settlement of Disputes (the DSU) provides that disputes between member states are to be resolved in adversary proceedings before impartial panels of experts." Under the DSU, panels have authority to decide whether members' laws violate international trade norms; panel decisions are essentially binding, though …

A 'Milder Measure Of Villainy': The Unknown History Of 42 U.S.C. Sec. 1983 And The Meaning Of 'Under Color Of' Law, David J. Achtenberg

Faculty Works

Chapter 42 U.S. C. § 1983, was originally enacted as section 1 of the Ku Klux Act. Not surprisingly, the history of the Ku Klux Act has played an important role in the interpretation of 42 U.S. C. § 1983. Unfortunately, the generally accepted history of the Ku Klux Act is incomplete, distorted, and, in some respects, demonstrably wrong.

The conventional history of the Ku Klux Act is flawed in three respects. First, it omits the first several chapters of the story. The conventional history begins with Grant's March 23, 1871, message to the Forty-second Congress and completely overlooks the …

Southworth V. Grebe: The Conservative Utilization Of "Negative" First Amendment Rights To Attack Diversity Of Thought At Public Universities, Meredith R. Miller

Scholarly Works

No abstract provided.

Supreme Court Section 1983 Developments: October 1998 Term, Martin A. Schwartz

Scholarly Works

No abstract provided.

Constitutional Law—Abortion—Sixth Circuit Strikes Down Ohio Ban Of Post-Viability And Dilation And Extraction Abortions—Women’S Medical Professional Corp. V. Voinovich, 130 F.3d 187 (6th Cir. 1997), Cert. Denied, 118 S. Ct. 1347 (1998), Mark L. Rienzi

Scholarly Articles

No abstract provided.

5 U.S. (1 Cranch) 137, 175, Eric J. Segall

Faculty Publications By Year

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Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article applies comparative institutional analysis to separation of powers under state constitutions, with a particular focus on the nondelegation doctrine and states' acceptance of Chadha-like restrictions on legislative oversight. The Article begins by contrasting state and federal doctrine and enforcement levels in each of these separation of powers contexts. Most state courts, unlike their federal counterparts, adhere to a strong nondelegation doctrine. In addition, many states accept (de facto if not de jure) even more explicit and sweeping legislative vetoes than the federal system. The Article highlights the contrast of federal and state approaches by identifying their similarity with …