Law Commons^™

Pole Dancing Reprise/Reprieve, Timothy Zick

Popular Media

No abstract provided.

The Sanctity Of Polling Places, Timothy Zick

Popular Media

No abstract provided.

A Darwinist View Of The Living Constitution, Scott Dodson

Faculty Publications

The metaphor of a “living” Constitution imports terms from biology into law and, in the process, relies on biology for its meaning. A proper understanding of biology is therefore central to understanding the idea of “living” constitutionalism. Yet despite its rampant use by both opponents and proponents of living constitutionalism, and despite the current fervent debate over whether biology can be useful to the law, no one has evaluated the metaphor from a biological perspective. This Essay begins that inquiry in an interdisciplinary study of law, science, and philology. The Essay first evaluates the metaphor as it is currently used …

Pole Dancing: The New Pilates?, Timothy Zick

Popular Media

No abstract provided.

Bush V. Boumediene: The Court Is Back, Jay Dratler

Akron Law Faculty Publications

This short article is a follow-up to a piece I wrote two years ago on Hamdan v. Rumsfeld, SSRN No. 913822. While applauding the result in Hamdan, I critiqued the Supreme Court for missing a “teachable moment” and obscuring the great issues at stake in prolixity and mind-numbing technical detail.

In this article, I applaud the Boumediene v. Bush Court not only for its result—that the Constitution’s Suspension Clause can require habeas corpus for aliens held abroad under certain circumstances—but for its reasoning and style as well. This time, the majority of five did not miss its “teachable …

How The Separation Of Powers Doctrine Shaped The Executive, Louis J. Sirico Jr.

Working Paper Series

This Article examines the debates of the Founders over the separation of powers doctrine as it relates to the executive branch. After surveying the experience in the colonies and under the post-Revolutionary state constitutions, it analyzes the relevant issues at the Constitutional Convention. Rather than focusing on abstract discussions of political theory, the article examines specific decisions and controversies in which separation of powers was a concern. The Article offers a detailed recounting of those debates. At the Convention, separation of powers arose most prominently in the arguments over nine issues: choosing the Executive, permitting the Executive to stand for …

``No One Does That Anymore": On Tushnet, Constitutions, And Others, Penelope J. Pether

Working Paper Series

In this contribution to the Quinnipiac Law Review’s annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship “against the grain,” concluding both that Tushnet’s later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric.

The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a science that would satisfy …

“Militant Judgement?: Judicial Ontology, Constitutional Poetics, And ‘The Long War’”, Penelope J. Pether

Working Paper Series

This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou’s Being and Event, uses Badiou’s theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of “Islamic” asylum seekers, “enemy combatants” and “terrorism suspects,” and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to …

An Evaluation Of The Need For And Functioning Of The Federal Sentencing Guidelines In The United States And Nigeria, Victoria T. Kajo

Cornell Law School Inter-University Graduate Student Conference Papers

The United States Federal Sentencing Guidelines, in use since 1987, was set up to reduce disparity in sentencing and its application was made mandatory. Though there are a few who are in favor of the guidelines, the guidelines as mandatory have been severely criticized and many have called for their abolition. Consequently, in the twin cases of United States v. Booker and United States v. Fanfan (2005) 125 S.Ct. 738, the US Supreme Court delivered judgment that had the effect of making the guidelines discretionary.

While the Nigerian legal system shares a Common Law background with the United States, Nigeria …

Waterboarding Is Illegal, Wilson R. Huhn

Akron Law Faculty Publications

In his 2007 confirmation hearing before the Senate Judiciary Committee considering his nomination to be Attorney General of the United States, Judge Michael Mukasey refused to address the legality of waterboarding. In my opinion there is no reasonable dispute about this matter. The laws of the United States make waterboarding unlawful in no uncertain terms.

Differentiating Church And State (Without Losing The Church), Patrick Mckinley Brennan

Working Paper Series

There is an ongoing debate about whether the U.S. Constitution includes -- or should be interpreted to include -- a principle of "church autonomy." Catholic doctrine and political theology, by contrast, clearly articulated a principle of "libertas ecclesiae," liberty of the church, when during the nineteenth and early twentieth centuries the Church differentiated herself from the state. This article explores the meaning and origin of the doctrine of the libertas ecclesiae and the proper relationship among churches, civil society, and government. In doing so, it highlights the points at which church and state should cooperate and the points at which …

“We Are At War And You Should Not Bother The President”: The Suffrage Pickets And Freedom Of Speech During World War I, Catherine J. Lanctot

Working Paper Series

The story of Alice Paul’s National Woman’s Party and its 1917 picketing campaign onbehalf of woman suffrage is almost unknown in legal circles. Yet the suffrage pickets were among the earliest victims of the suppression of dissent that accompanied the entry of the United States into World War I. Nearly forty years before the modern civil rights movement brought the concept of nonviolent civil disobedience to the forefront of American political discourse, the NWP conducted a direct action campaign at the very doorstep of the President of the United States, and they did so during a time of war.

In …

The Tropicalization Of Proportionality Balancing: The Colombian And Mexican Examples, Luisa Conesa

Cornell Law School Inter-University Graduate Student Conference Papers

In “The Tropicalization of Proportionality Balancing: the Colombian and Mexican Examples” the author analyzes how the German based proportionality balancing test was exported to Latin America, by studying the Colombian Constitutional Court and the Mexican Supreme Court. This work is guided by the following questions: what is proportionality balancing? How has it been used by the Colombian and Mexican jurisprudences and what are its influences? Do the Courts cite other jurisdictions when using the test? Have they imported a traditional European test? Or, have they “tropicalized” it?

The study of the Latin American examples leads to the conclusion that the …

Free Speech And Human Dignity, Steven J. Heyman

All Faculty Scholarship

No abstract provided.

Digitus Impudicus: The Middle Finger And The Law, Ira Robbins

Articles in Law Reviews & Other Academic Journals

The middle finger is one of the most commonly used insulting gestures in the United States. The finger, which is used to convey a wide range of emotions, is visible on streets and highways, in schools, shopping malls, and sporting events, in courts and execution chambers, in advertisements and on magazine covers, and even on the hallowed floor of the United States Senate. Despite its ubiquity, however, as a number of recent cases demonstrate, those who use the middle finger in public run the risk of being stopped, arrested, prosecuted, fined, and even incarcerated under disorderly conduct or breach of …

Reviving The Subject Of Law, Penelope J. Pether

Working Paper Series

This essay is an advanced draft of work that will be published in On Philosophy and American Law (Francis J. Mootz III ed. forthcoming, Cambridge U.P., 2009). This edited collection includes responses by a wide range of scholars working in legal theory to Mootz’s challenge to respond to the current state of American legal philosophy, using Karl Llewellyn’s 1934 University of Pennsylvania law review account of the emergence of legal realism as a prompt. Drawing on the author’s recent scholarship on the emergence of a distinctive and impoverished model of “common law” judging in the U.S. since the mid- c20th, …

The "Fetal Protection" Wars: Why America Has Made The Wrong Choice In Addressing Maternal Substance Abuse - A Comparative Legal Analysis, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Substantive Media Regulation In Three Dimenstions, Gregory P. Magarian

Working Paper Series

Changes in the political and regulatory climates are prompting calls to revive substantive government regulation of the broadcast media, specifically the now-defunct fairness doctrine. In this article, Professor Magarian attempts to sharpen the present debate over substantive regulation by closely examining earlier defenses and criticisms of the fairness doctrine. The article assesses how supporters and opponents of the fairness doctrine have characterized three issues essential for assessing the doctrine’s wisdom and constitutionality: who is regulating; who is being regulated; and the goal of the regulatory scheme. As to the first issue, who is regulating, fairness doctrine supporters emphasize the democratic …

Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts V. Epa's New Standing Test For States, Bradford Mank

Faculty Articles and Other Publications

In Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the Supreme Court held that carbon dioxide (CO²) and other greenhouse gases (GHGs) are air pollutants within the meaning of the Clean Air Act (CAA). Although its decision on the merits is important, the Court's conclusion that Massachusetts had standing to file suit because states are entitled to more lenient standing criteria may have a greater impact in the long-term on legal doctrine. In Massachusetts, the Supreme Court for the first time clearly gave greater standing rights to states than ordinary citizens. The Court, however, failed to explain to what extent …

"A Frequent Recurrence To Fundamental Principles": A Tribute To Jim Ely, John V. Orth

Faculty Publications

No abstract provided.

Standing At The Crossroads: The Roberts Court In Historical Perspective, Maxwell L. Stearns

Faculty Scholarship

After eleven years, the longest period in Supreme Court history with no change in membership, the Roberts Court commenced in the year 2005 with two new justices. John Roberts replaced William Rehnquist as the seventeenth Chief Justice and Samuel Alito replaced Sandra Day O’Connor as Associate Justice. The conventional wisdom suggests that on the nine-justice Supreme Court, these two appointments have produced a single-increment move, ideologically, to the right. The two Chief Justices occupy roughly the same ideological position. In contrast, whereas O’Connor was generally viewed as occupying the Court’s centrist, or median, position, Alito has instead continued to embrace …

The Anatomy Of Grey: A Theory Of Interracial Convergence, Kevin Noble Maillard, Janis L. Mcdonald

College of Law - Faculty Scholarship

This article offers a theory of racial identity divorced from biological considerations. Law fails to recognize the complexity of racial performance and identity, thus categorically simplifying a perceived polarity of black and white. Ground-breaking scholarship addressing racial boundaries, as written by Randall Kennedy, Elizabeth Bartholet, and Angela Onwauchi-Willig, generally focuses on the enduring legacy of race discrimination. We approach these boundaries from a different angle—whites who become “less white.” We bring together the challenges of passing and adoption to offer a theory of fluid racial boundaries.

Transracial adoption provides one viable channel to discuss the possibilities of white-to-black racial identity …

The Multiracial Epiphany, Kevin Noble Maillard

College of Law - Faculty Scholarship

The year 1967 becomes the temporal landmark for the beginning of an interracial nation. That year, the United States Supreme Court ruled state antimiscegenation laws unconstitutional in Loving v Virginia. In addition to outlawing interracial marriage, these restrictive laws had created a presumption of illegitimacy for historical claims of racial intermixture. Not all states had antimiscegenation laws, but the sting of restriction extended to other states to forge a collective forgetting of mixed race. Defenders of racial purity could depend on these laws to render interracial relationships illegitimate. Looking back to Loving as the official birth of Multiracial America reinforces …

Children, Kin And Court: Designing Third Party Custody Policy To Protect Children, Third Parties And Parents, Josh Gupta-Kagan

Faculty Publications

No abstract provided.

Risky Business: Massachusetts V. Epa, Risk-Based Harm, And Standing In The D.C. Circuit, Amanda Leiter

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Corruption Of Religion And The Establishment Clause, Andrew Koppelman

Faculty Working Papers

Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous irrational dogmatism into politics and make democratic compromise more difficult. This paper explores one consideration, prominent at the time of the framing, that is often overlooked: the idea that religion can be corrupted by state involvement with it. This idea is friendly to religion but, precisely for that reason, is determined to keep the state away from religion.

If the religion-protective argument for disestablishment is to be useful today, it cannot …

Conflicts Between The Commander In Chief And Congress: Concurrent Power Over The Conduct Of War, Jules Lobel

Articles

The Bush Administration argues that the Commander in Chief has exclusive power to decide what military tactics to use to defeat a wartime enemy. The Administration's constitutional position that Congress may not permissibly interfere with these Executive Commander in Chief powers has been heavily criticized, particularly with respect to the Executive power to interrogate prisoners or engage in warrantless wiretapping on American citizens and its argument that Congress cannot limit the Iraq war. Yet, many critics concur in the Administration's starting point - that the President has exclusive authority over battlefield operations.

This article challenges that assumption. It argues that …

Supreme Court Reversals: Exploring The Seventh Court, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Parents Involved And The Meaning Of Brown: An Old Debate Renewed, Jonathan L. Entin

Faculty Publications

In Parents Involved in Community Schools v. Seattle School District No. 1 the Supreme Court debated the meaning of Brown v. Board of Education. This essay, prepared for a symposium on Parents Involved, traces the roots of the debate between color-blindness and anti-subordination to Brown itself and efforts to desegregate public schools in the wake of that decision but shows that the debate goes back at least as far as the tensions reflected in the first Justice Harlan's celebrated dissent in Plessy v. Ferguson.

The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers

Faculty Scholarship

No abstract provided.