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Articles 1 - 26 of 26
Full-Text Articles in Law
The View Outside: What Kind Of Expression For Adolescents Outside The United States?, Edward J. Eberle
The View Outside: What Kind Of Expression For Adolescents Outside The United States?, Edward J. Eberle
Law Faculty Scholarship
No abstract provided.
Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton
Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton
Faculty Scholarship
In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling -- specifically, a public law school’s interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well. The switch to instrumental justifications for affirmative action appears a strategic response to the Court’s narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning whether …
Does The Constitution Apply To The Actions Of The United States Anti-Doping Agency?, Dionne L. Koller
Does The Constitution Apply To The Actions Of The United States Anti-Doping Agency?, Dionne L. Koller
All Faculty Scholarship
Since its formation in 2000, the United States Anti-Doping Agency (USADA) has aggressively pursued athletes who are believed to have used performance-enhancing substances and has aggressively prosecuted those who ultimately test positive. To many, this is a long overdue response to the growing problem of doping in sports. But to others, USADA's actions, and the federal government's support of these efforts, has sparked enormous controversy. This article examines USADA and its relationship to the federal government to determine whether USADA's actions could be constrained by the Constitution. While it is clear that USADA has very close ties to the federal …
The Lessons Of People V. Moscat: Confronting Judicial Bias In Domestic Violence Cases Interpreting Crawford V. Washington, David Jaros
All Faculty Scholarship
Crawford v. Washington was a groundbreaking decision that radically redefined the scope of the Confrontation Clause. Nowhere has the impact of Crawford and the debate over its meaning been stronger than in the context of domestic violence prosecutions. The particular circumstances that surround domestic violence cases 911 calls that record cries for help and accusations, excited utterances made to responding police officers, and the persistent reluctance of complaining witnesses to cooperate with prosecutors -- combine to make the introduction of "out-of-comment statements" a critical component of many domestic violence prosecutions. Because domestic violence cases are subject to a unique set …
Foreign Law And The U.S. Constitution, Kenneth Anderson
Foreign Law And The U.S. Constitution, Kenneth Anderson
Popular Media
The use of foreign law and unratified international treaty law by U.S. courts in U.S. constitutional adjudication has emerged as a major debate among justices of the U.S. Supreme Court, with Justice Anthony Kennedy writing for a majority approving the practice in the March 2005 decision of Roper v. Simmons, and Justices Antonin Scalia and Stephen Breyer undertaking an unusual public discussion of the practice in January 2005 at American University law school. This article examines the arguments made by Justices Kennedy, Scalia, and Breyer for and against the practice, setting them in the broader context of constitutional theory. It …
Immigration And Constitutional Consequences Of Post-9/11 Policies Involving Arabs And Muslims In The United States: Is Alienage A Distinction Without A Difference?, Susan M. Akram, Maritza Karmely
Immigration And Constitutional Consequences Of Post-9/11 Policies Involving Arabs And Muslims In The United States: Is Alienage A Distinction Without A Difference?, Susan M. Akram, Maritza Karmely
Faculty Scholarship
There has been much public and academic discussion on post-9/11 government policies and whether their impact on Arabs and Muslims in the United States is unconstitutional “racial profiling” or legitimate immigration control based on constitutionally permissible nationality distinctions. The main assumption underlying this debate is that the focus of the government's policies in the “war on terror” is noncitizens, even if principally Arabs and Muslims. Thus, the racial profiling issues center on the differences between the constitutional due process analysis applied to noncitizens and that applied to citizens. This Article challenges the above argument and a number of its underlying …
Reply Brief For Petitioner, Hamdan V. Rumsfeld, No. 04-702 (U.S. Jan. 03, 2005), Neal K. Katyal
Reply Brief For Petitioner, Hamdan V. Rumsfeld, No. 04-702 (U.S. Jan. 03, 2005), Neal K. Katyal
U.S. Supreme Court Briefs
No abstract provided.
The Demise Of The First Amendment As A Guarantor Of Religious Freedom, Ivan E. Bodensteiner
The Demise Of The First Amendment As A Guarantor Of Religious Freedom, Ivan E. Bodensteiner
Law Faculty Publications
No abstract provided.
Controlling Identity: Plessy, Privacy, And Racial Defamation, Jonathan Kahn
Controlling Identity: Plessy, Privacy, And Racial Defamation, Jonathan Kahn
Faculty Scholarship
This Article explores the origins of privacy law in early twentieth century America in relation to the legal solidification of Jim Crow in the aftermath of Plessy v. Ferguson. It considers some distinctively southern aspects of the origins of the right to privacy and argues that by viewing privacy, racial defamation, and Jim Crow in relation to each other, we can gain new insights into each-coming to understand that Plessy was not just about controlling space, or property, or even equality but also about controlling identity itself, and coming to see that in its origins, the right to privacy had …
The Statutory President, Kevin M. Stack
The Statutory President, Kevin M. Stack
Vanderbilt Law School Faculty Publications
American public law has no answer to the question of how a court should evaluate the president's assertion of statutory authority. In this Article, I develop an answer by making two arguments. First, the same framework of judicial review should apply to claims of statutory authority made by the president and federal administrative agencies. This argument rejects the position that the president's constitutional powers should shape the question of statutory interpretation presented when the president claims that a statute authorizes his actions. Once statutory review is separated from consideration of the president's constitutional powers, the courts should insist, as they …
Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne
Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
In Search Of A Theory For Constitutional Comparativism, Roger P. Alford
In Search Of A Theory For Constitutional Comparativism, Roger P. Alford
Journal Articles
Constitutional comparativism - the notion that international and foreign material should be used to interpret the U.S. Constitution - is gaining currency. Yet proponents of this practice rarely offer a firm theoretical justification for the practice. This Article contends that constitutional comparativism should be examined from the perspective of constitutional theory. The use of comparative and international material must be deemed appropriate or inappropriate based on a particular judge's interpretive mode of constitutional analysis. The Article presents four classic constitutional theories - originalism, natural law, majoritarianism, and pragmatism - and addresses the propriety of constitutional comparativism under each theory. This …
Since When Is Dicta Enough To Trump Fourth Amendment Rights - The Aftermath Of Florida V. J.L., Melanie Wilson
Since When Is Dicta Enough To Trump Fourth Amendment Rights - The Aftermath Of Florida V. J.L., Melanie Wilson
Scholarly Works
No abstract provided.
The Religion-State Relationship And The Right To Freedom Of Religion Or Belief: A Comparative Textual Analysis Of The Constitutions Of Predominantly Muslim Countries, Robert C. Blitt
Scholarly Works
This study analyzes the constitutional provisions in 44 predominantly Muslim countries addressing the relationship between religion and the state, freedom of religion or belief, and other related human rights as measured against recognized international human rights standards. The geographic diversity of the Muslim world mirrors a central finding of the study, that predominantly Muslim countries encompass a variety of constitutional arrangements - ranging from Islamic republics with Islam as the official state religion, to secular states with strict separation of religion and state. Key findings of the survey include: More than half of the world's Muslim population (estimated at over …
Waging War: Japan's Constitutional Constraints, John O. Haley
Waging War: Japan's Constitutional Constraints, John O. Haley
Vanderbilt Law School Faculty Publications
Both electoral results and public opinion polls have long revealed what most observers have viewed as a paradox if not a contradiction. By significant majorities, the Japanese people appear to oppose any revision of article 9, but support the SDF and their deployment with legislative sanction. The seemingly antithetical aspects of these views can be reconciled if one accepts the proposition that the public is willing to allow an armed force but only within parameters that are still ill-defined. So long as article 9 remains, the government is constrained by the need for legislative approval and at least potential judicial …
Abandoning Recess Appointments: A Comment On Hartnett (And Others), Michael Herz
Abandoning Recess Appointments: A Comment On Hartnett (And Others), Michael Herz
Articles
No abstract provided.
The Unitary Executive In The Modern Era, 1945-2004, Anthony J. Colangelo, Christopher S. Yoo, Steven G. Calabresi
The Unitary Executive In The Modern Era, 1945-2004, Anthony J. Colangelo, Christopher S. Yoo, Steven G. Calabresi
Faculty Journal Articles and Book Chapters
Since the impeachment of President Clinton, there has been renewed debate over whether Congress can create institutions such as special counsels and independent agencies that restrict the president's control over the administration of the law. Initially, debate centered on whether the Constitution rejected the executive by committee used by the Articles of Confederation in favor of a unitary executive, in which all administrative authority is centralized in the president. More recently, the debate has focused on historical practices. Some scholars suggest that independent agencies and special counsels are such established features of the constitutional landscape that any argument in favor …
Stepping Through Grutter's Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen Norton
Publications
In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling - specifically, a public law school's interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well.
The switch to instrumental justifications for affirmative action appears a strategic response to the Court's narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning …
Architectural Censorship And The Fcc, Christopher S. Yoo
Architectural Censorship And The Fcc, Christopher S. Yoo
All Faculty Scholarship
Most First Amendment analyses of U.S. media policy have focused predominantly on “behavioral” regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children’s educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by “structural” regulation, which focuses primarily on increasing the economic competitiveness of media industries. In this Article, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation can constitute a form of “architectural censorship” that has the unintended consequence of reducing the quantity, quality, and …
Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young
Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young
Faculty Scholarship
No abstract provided.
Ten Commandments, Nine Judges, And Five Versions Of One Amendment - The First. (“Now What?”), William W. Van Alstyne
Ten Commandments, Nine Judges, And Five Versions Of One Amendment - The First. (“Now What?”), William W. Van Alstyne
Faculty Scholarship
This article explores the variety of opinions expressed by the Justices in the two “Ten Commandments” cases, specifically Justice O’Connor’s dissent and Justice Breyer’s concurrence in Van Orden v. Perry.
In Defense Of The Debt Limit Statute, Anita S. Krishnakumar
In Defense Of The Debt Limit Statute, Anita S. Krishnakumar
Faculty Publications
The debt limit statute is a critical feature of the federal budget process and prompts frequent legislation to increase the government's borrowing authority. In this Article, Professor Anita S. Krishnakumar examines the history of the debt limit statute as well as its function in the fiscal constitution. The Article deconstructs several popular criticisms of the debt limit statute, arguing that the criticisms exaggerate and that the statute in fact serves two important roles: first, the statute is the last remnant of congressional control and accountability over the national debt; second, it acts as an important institutional check on party and …
Spiritual Custody: Relational Rights And Constitutional Commitments, Jeffrey Shulman
Spiritual Custody: Relational Rights And Constitutional Commitments, Jeffrey Shulman
Georgetown Law Faculty Publications and Other Works
Patricia and David Zummo were married on December 17, 1978. When they divorced ten years later, the Zummos were unable to come to agreement about the religious upbringing of their three children. Prior to their marriage, Patricia and David had agreed that they would raise their children in the Jewish faith, and while they were married, "the Zummo family participated fully in the life of the Jewish faith and community." But after the divorce David wanted to take the children to Roman Catholic services as he saw fit, and he refused to arrange for the children's attendance at Hebrew School …
Why You Should Read My Book Anyhow: A Reply To Trevor Morrison, Randy E. Barnett
Why You Should Read My Book Anyhow: A Reply To Trevor Morrison, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Authors rarely have the opportunity to respond to their reviewers in the same issue in which the review is published, so I am grateful to the Cornell Law Review for inviting me to do so and to Trevor Morrison for graciously agreeing. I am also appreciative of the respectful tone that Professor Morrison employs in his comments on a book with which he so obviously disagrees. Coming from a critic, the positive qualities he attributes to Restoring the Lost Constitution: The Presumption of Liberty are especially significant. Yet he does disagree with me, which means that I disagree with him, …
The First Amendment's Original Sin, Lee C. Bollinger
The First Amendment's Original Sin, Lee C. Bollinger
Faculty Scholarship
Times of war place considerable stress on civil liberties, especially ones protected by the First Amendment. When the nation must gather itself to fight an enemy who is intent on killing us, it is perhaps only natural that our tolerance for the usual disorder of dissent will decline. When everyone has to sacrifice for the common good, when fellow citizens are dying in that cause, the costs of speech are visible and serious. Dissent may dissuade or discourage soldiers from fighting; sowing doubt may weaken resolve just when it's needed most; falsehoods and misinformation may lead to catastrophic shifts of …
United States Court Of Federal Claims: Walker V. United States, Michael J. Graetz
United States Court Of Federal Claims: Walker V. United States, Michael J. Graetz
Faculty Scholarship
Walker v. United States, 69 Fed. Cl. 222, (Fed. Cl. 2005) (granting motion for reconsideration upon finding that water, access and forage rights were legally distinct from surface estate rights determined in a prior action).