Law Commons^™

The Science, Law, And Politics Of Fetal Pain Legislation, Kevin C. Walsh

Scholarly Articles

Most people prefer not to inflict gratuitous pain on other sentient beings, especially other humans. What, then, should be the legal system's reaction to the mounting evidence that in late-term abortions doctors are inflicting just such pain on fetuses who have the anatomical, physiological, and neurological capacity to experience it? The pain being inflicted is gratuitous because it can be easily avoided with no significant increases in cost or health risk by the administration of tar geted fetal pain relief. If informed that an abortion is likely to cause pain to the fetus and given a choice between a procedure …

Politicization And Judicialization Of The U.S. Chief Executive’S Political And Criminal Responsibility: A Threat To Constitutional Integrity Or A Natural Result Of The Constitution’S Flexibility?, Rett R. Ludwikowski

Scholarly Articles

This article attempts to analyze to what extent the scope of executive privilege, constitutionally committed to the executive branch, is determined by judicial process or by purely political factors. It opens with a brief report on the process of formation of the Presidential model of government and the system of checks and balances in the United States. Focusing on the checks imposed on the Executive, this article distinguishes those restraints that are clearly constitutionalized, or stemming from judicial determination of their constitutionality, and those which are the result of judicial interpretation of the beneficial aspects of public policy or political …

Security Vs. Personal Freedom: America's Challenge In The War On Terrorism, Raymond B. Marcin

Scholarly Articles

No abstract provided.

Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin Roger Scordato

Scholarly Articles

The tragic events of September 11th generated numerous proposals for greater security measures and increased police powers that might, if implemented, constrict the customary scope of free speech in the United States. Legitimate concerns for internal security have placed increased pressures on traditional constitutional protections for expressive activity. It is against this backdrop that this article presents a careful examination of the basic rationales for adopting constitutional level protections for free speech. The article analyzes the nature of, and many of the conflicts among, the traditional rationales for a constitutional right of free expression. It also suggests that much of …

When Can The Government’S Misrepresentations Give Rise To A Constitutional Tort?, Antonio F. Perez

Scholarly Articles

Can allegations that senior State Department and National Security Council officials failed to inform a U.S. citizen that her foreign citizen husband was in foreign custody suffice to allege a denial of access to the courts in violation of the Fifth Amendment so as to give rise to a constitutional tort even absent any allegation that the plaintiff tried to file a lawsuit or was actually hindered in doing so?

If so, was that right clearly established as of the time of the government officials' conduct so as to defeat a defense of qualified immunity?

Constitutional Values And The Ethics Of Health Care: A Comparison Of The United States And Germany, William J. Wagner

Scholarly Articles

In the first section, this essay will consider questions the new era in health care poses for a health-care ethics of ends. The second section will address the question this emerging era raises for a health-care ethics of duty. Under the rubric of an ethics of ends, the essay examines, more particularly, the ends of health and efficiency. Under that of duty, it addresses the duties of respect for the dignity of the human person; respect for the covenant of treatment; and respect for justice in distribution. In each case, it seeks to identify the basis for an adequate response …

When Do Claims Challenging A Statute’S Effect On Pre-Existing Contracts Accrue?, Lucia A. Silecchia

Scholarly Articles

No abstract provided.

Rethinking Sullivan: New Approaches In Australia, New Zealand And England, Susanna Frederick Fischer

Scholarly Articles

This Article employs a comparative analysis of some important recent Commonwealth libel cases to analyze what has gone wrong with U.S. defamation law since New York Times v. Sullivan and to suggest a new direction for its reform. In Lange v. Australian Broadcasting Corporation, Lange v. Atkinson, and Reynolds v. Times Newspapers, the highest courts of the Australian, New Zealand, and English legal systems were confronted with the same challenge faced by the U.S. Supreme Court in New York Times v. Sullivan. They had to decide the proper constitutional balance between protection of reputation and protection …

Federal Courts, Overbreadth, And Vagueness: Guiding Principles For Constitution Challenges To Uninterpreted State Statutes, Mark L. Rienzi, Stuart Buck

Scholarly Articles

When a federal court is asked to declare an uninterpreted state law to be unconstitutionally overbroad or vague, it faces several tensions. On one side, the overbreadth and vagueness doctrines urge the court to strike down the statute on its face. On the other side, the related doctrines of constitutional avoidance, narrowing interpretations, abstention and certification all urge the court to find some way to save the statute at least as to some applications. But because of the cardinal principle that federal courts are not the final authority on the interpretation of state law, many federal courts err on the …