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Articles 1 - 10 of 10
Full-Text Articles in Law
Abusive Constitutionalism, David Landau
Abusive Constitutionalism, David Landau
Scholarly Publications
This paper identifies an increasingly important phenomenon: the use of mechanisms of constitutional change to erode the democratic order. A rash of recent incidents in a diverse group of countries such as Hungary, Egypt, and Venezuela has shown that the tools of constitutional amendment and replacement can be used by would-be autocrats to undermine democracy with relative ease. Since military coups and other blatant ruptures in the constitutional order have fallen out of favor, actors instead rework the constitutional order with subtle changes in order to make themselves difficult to dislodge and to disable or pack courts and other accountability …
Secondary Speech And The Protective Approach To Interpretive Dualities In The Roberts Court, Nat Stern
Secondary Speech And The Protective Approach To Interpretive Dualities In The Roberts Court, Nat Stern
Scholarly Publications
No abstract provided.
Women's Rights On The Right: The History And Stakes Of Modern Pro-Life Feminism, 1968 To The Present, Mary Ziegler
Women's Rights On The Right: The History And Stakes Of Modern Pro-Life Feminism, 1968 To The Present, Mary Ziegler
Scholarly Publications
Recently, pro-life advocates have popularized claims that abortion harms rather than helps women. The best known of these arguments are the woman-protective arguments—contentions, such as those endorsed in Gonzales v. Carhart, justifying abortion restrictions on the basis of the physical or psychological harms supposedly produced by the procedure. Woman-protective claims, however, represent only one part of a much larger strategy that this Article calls pro-life feminism. The Article follows pro-life activists’ use of the term “feminist” or “feminism.” As the Article makes clear, activists on competing sides of the abortion issue have contested the meaning of “true” feminism. Taking …
Abortion And Disgust, Courtney Megan Cahill
Abortion And Disgust, Courtney Megan Cahill
Scholarly Publications
This Article uses disgust theory — defined as the insights on disgust by psychologists and social scientists — to critique disgust’s role in abortion lawmaking. Its starting point is a series of developments that independently highlight and call into question the relationship between abortion and disgust. First, the Supreme Court introduced disgust as a valid basis for abortion regulation in its 2007 case Gonzales v. Carhart. Second, psychologists have recently discovered a sufficiently strong association between individual disgust sensitivity and abortion opposition to suggest that disgust might drive that opposition. They have also discovered that “abortion disgust” appears to be …
Advancing An Adaptive Standard Of Strict Scrutiny For Content-Based Commercial Speech Regulation, Nat Stern, Mark Joseph Stern
Advancing An Adaptive Standard Of Strict Scrutiny For Content-Based Commercial Speech Regulation, Nat Stern, Mark Joseph Stern
Scholarly Publications
No abstract provided.
Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein
Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein
Scholarly Publications
The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but …
Dynamic Energy Federalism, Hannah J. Wiseman, Hari M. Osofsky
Dynamic Energy Federalism, Hannah J. Wiseman, Hari M. Osofsky
Scholarly Publications
United States energy law and the scholarship analyzing it are deeply fragmented. Each source of energy has a distinct legal regime, and limited federal regulation in some areas has resulted in divergent state and local approaches to regulation. Much of the existing energy law literature reflects these substantive and structural divisions, and focuses on particular aspects of the energy system and associated federalism disputes. However, in order to meet modern energy challenges—such as reducing risks from deepwater drilling and hydraulic fracturing, maintaining the reliability of the electricity grid in this period of rapid technological change, and producing cleaner energy—we need …
Liberty Of Palate, Samuel R. Wiseman
Liberty Of Palate, Samuel R. Wiseman
Scholarly Publications
As lawmakers concerned with problems as diverse as childhood obesity, animal cruelty, and listeria have increasingly focused their attention on consumers, legal issues surrounding food choice have recently attracted much broader interest. Bans on large sodas in New York City, fast food chains in South Los Angeles, and foie gras in California and Chicago have provoked national controversy, as have federal raids on raw milk sellers. In response, various groups have decried restrictions on their ability to consume the food products of their choice. A few groups have organized around the principle of what we might call liberty of palate, …
Constitution-Making Gone Wrong, David Landau
Constitution-Making Gone Wrong, David Landau
Scholarly Publications
With the recent wave of regime change in the Middle East, the process of constitution-making must again become a central concern for those interested in comparative law and politics. The conception of constitutional politics associated with Jon Elster and Bruce Ackerman views constitution-making as a potentially higher form of lawmaking with different dynamics than ordinary politics and states that, ideally, constitution-making should be designed so as to be a relatively deliberative process where the role of group and institutional interests is deemphasized. I argue that a focus on achieving deliberation and transformation through constitution-making is unrealistic in certain situations and …
Florence V. Board Of Chosen Freeholders: Police Power Takes A More Intrusive Turn, Wayne A. Logan
Florence V. Board Of Chosen Freeholders: Police Power Takes A More Intrusive Turn, Wayne A. Logan
Scholarly Publications
This essay discusses the Supreme Court’s 2012 decision in Florence v. Board of Chosen Freeholders allowing strip searches of minor offense arrestees without any suspicion that they possess a weapon or contraband. After summarizing the Court’s holding, the essay explores how Florence builds upon prior caselaw affording police virtually unlimited discretionary authority to execute warrantless arrests, and the unlikelihood that institutional limits will be placed on the strip search authority of corrections officials.