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Articles 1 - 30 of 45
Full-Text Articles in Law
Thinly Rooted: Dobbs, Tradition, And Reproductive Justice, Darren L. Hutchinson
Thinly Rooted: Dobbs, Tradition, And Reproductive Justice, Darren L. Hutchinson
Faculty Articles
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. These two cases held that the Due Process Clause of the Fourteenth Amendment encompassed a right of women to terminate a pregnancy. Roe reflected over 60 years of substantive due process precedent finding and reaffirming a constitutional right of privacy with several animating themes, including bodily integrity, equality, and dignity. The Court’s substantive due process doctrine had established that the analysis in such cases would involve multiple points of inquiry, such as tradition, contemporary practices, and …
Questions Of Intellectual Property And Fundamental Values In The Digital Age, Jessica Silbey
Questions Of Intellectual Property And Fundamental Values In The Digital Age, Jessica Silbey
Faculty Scholarship
Today's intellectual property debates, in both law and the larger society, are a bellwether of changing justice needs in the twenty-first century. As the digital age democratizes technological opportunities, it brings intellectual property law into mainstream everyday culture. This generates debates about the relationship between the constitutional interest in "the progress of science and useful arts" and other fundamental values, such as equality, privacy, and distributive justice. These values, which were not explicitly part of intellectual property regimes in prior eras, are especially challenged in today's internet world.
The article (which was presented as the annual Nies Lecture in April …
Europe's Digital Constitution, Anu Bradford
Europe's Digital Constitution, Anu Bradford
Faculty Scholarship
This Article uncovers the fundamental values underlying the European Union’s expansive set of digital regulations, which in aggregate can be viewed as Europe’s “digital constitution.” This constitution engrains Europe’s human-centric, rights-preserving, democracy-enhancing, and redistributive vision for the digital economy into binding law. This vision stands in stark contrast to the United States, which has traditionally placed its faith in markets and tech companies’ self-regulation. As a result, American tech companies today are regulated primarily by Brussels and not by Washington. By highlighting the distinctiveness and the global reach of the European digital constitution, this Article challenges the common narrative that …
The Law Of Ai, Margot Kaminski
Against Progress: Interventions About Equality In Supreme Court Cases About Copyright Law, Jessica Silbey
Against Progress: Interventions About Equality In Supreme Court Cases About Copyright Law, Jessica Silbey
Faculty Scholarship
This symposium essay is adapted from my forthcoming book Against Progress: Intellectual Property and Fundamental Values in the Internet Age (Stanford University Press 2021 forthcoming). The book’s primary argument is that, with the rise of digital technology and the ubiquity of the internet, intellectual property law is becoming a mainstream part of law and culture. This mainstreaming of IP has particular effects, one of which is the surfacing of on-going debates about “progress of science and the useful arts,” which is the constitutional purpose of intellectual property rights.
In brief, Against Progress describes how in the 20th century intellectual property …
Equality Opportunity And The Schoolhouse Gate, Derek Black, Michelle Adams
Equality Opportunity And The Schoolhouse Gate, Derek Black, Michelle Adams
Faculty Publications
Public schools have generated some of the most far-reaching cases to come before the Supreme Court. They have involved nearly every major civil right and liberty found in the Bill of Rights. The cases are often reflections of larger societal ills and anxieties, from segregation and immigration to religion and civil discourse over war. In that respect, they go to the core of the nation’s values. Yet constitutional law scholars have largely ignored education law as a distinct area of study and importance.
Justin Driver’s book cures that shortcoming, offering a three-dimensional view of how the Court’s education law jurisprudence …
Internet Utopianism And The Practical Inevitability Of Law, Julie E. Cohen
Internet Utopianism And The Practical Inevitability Of Law, Julie E. Cohen
Georgetown Law Faculty Publications and Other Works
"Writing at the dawn of the digital era, John Perry Barlow proclaimed cyberspace to be a new domain of pure freedom. Addressing the nations of the world, he cautioned that their laws, which were “based on matter,” simply did not speak to conduct in the new virtual realm. As both Barlow and the cyberlaw scholars who took up his call recognized, that was not so much a statement of fact as it was an exercise in deliberate utopianism. But it has proved prescient in a way that they certainly did not intend. The “laws” that increasingly have no meaning in …
New Report Details Consequences Of Trump Administration’S Overly Broad Guidance On Religious Liberty, Public Rights/Private Conscience Project, Center For American Progress
New Report Details Consequences Of Trump Administration’S Overly Broad Guidance On Religious Liberty, Public Rights/Private Conscience Project, Center For American Progress
Center for Gender & Sexuality Law
April 3, 2018, Washington, D.C. – Obama-era rules prohibiting discrimination in dozens of federal programs could be undermined by the Trump administration’s controversial guidance on religious liberty, according to a new report from the Center for American Progress and Columbia Law School’s Public Rights/Private Conscience Project.
“First Amendment Defense Act” (Fada) Is Reintroduced In The Senate, Public Rights/Private Conscience Project
“First Amendment Defense Act” (Fada) Is Reintroduced In The Senate, Public Rights/Private Conscience Project
Center for Gender & Sexuality Law
New York, March 8, 2018–The Public Rights/Private Conscience Project is dismayed that the deceptively named “First Amendment Defense Act” (FADA) was reintroduced into the U.S. Senate today by Sen. Mike Lee (R-Utah) and 21 Republican co-sponsors, including Sens. Marco Rubio (Fla.), Ted Cruz (Texas) and Orrin Hatch (Utah). Not only is this bill unnecessary to the protection of religious liberty in the United States, its language would be harmful to the constitutional rights of millions of Americans.
Virtual Competition The Rise Of Unchallenged Collusion And Discrimination?, Maurice Stucke, Ariel Ezrachi
Virtual Competition The Rise Of Unchallenged Collusion And Discrimination?, Maurice Stucke, Ariel Ezrachi
College of Law Faculty Scholarship
No abstract provided.
Columbia Law School Think Tank Submits Amicus Brief In Transgender Rights Case, Public Rights/Private Conscience Project
Columbia Law School Think Tank Submits Amicus Brief In Transgender Rights Case, Public Rights/Private Conscience Project
Center for Gender & Sexuality Law
April 25, 2017 – Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) and Willkie Farr & Gallagher LLP filed an amicus brief yesterday with the Sixth Circuit Court of Appeals in a case that raises the important question of whether employers can use religious liberty arguments to avoid compliance with federal non-discrimination laws. Specifically, it considers whether employers have the right to engage in sex discrimination if motivated by religious principles. The case, Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes Inc., was brought on behalf of Aimee Stephens, a funeral home director who was fired …
Siri-Ously 2.0: What Artificial Intelligence Reveals About The First Amendment, Toni M. Massaro, Helen Norton, Margot E. Kaminski
Siri-Ously 2.0: What Artificial Intelligence Reveals About The First Amendment, Toni M. Massaro, Helen Norton, Margot E. Kaminski
Publications
The First Amendment may protect speech by strong Artificial Intelligence (AI). In this Article, we support this provocative claim by expanding on earlier work, addressing significant concerns and challenges, and suggesting potential paths forward.
This is not a claim about the state of technology. Whether strong AI — as-yet-hypothetical machines that can actually think — will ever come to exist remains far from clear. It is instead a claim that discussing AI speech sheds light on key features of prevailing First Amendment doctrine and theory, including the surprising lack of humanness at its core.
Courts and commentators wrestling with free …
The Rule Of Law In The Technological Age Challenges And Opportunities For The Eu Collected Papers, Maurice Stucke
The Rule Of Law In The Technological Age Challenges And Opportunities For The Eu Collected Papers, Maurice Stucke
Scholarly Works
No abstract provided.
Super Strong Clear Statement Rules Down Under, Linda Jellum
Super Strong Clear Statement Rules Down Under, Linda Jellum
Articles
No abstract provided.
Siri-Ously? Free Speech Rights And Artificial Intelligence, Toni M. Massaro, Helen Norton
Siri-Ously? Free Speech Rights And Artificial Intelligence, Toni M. Massaro, Helen Norton
Publications
Computers with communicative artificial intelligence (AI) are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication ours versus theirs. This, in turn, invites questions about whether the First Amendment ever will (or ever should) cover AI speech or speakers even absent a locatable and accountable human creator. In this Article, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; their elasticity suggests that speaker humanness no longer may be …
The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh
The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh
Faculty Scholarship
This chapter examines the relationship between private law and constitutional law in India, with particular emphasis on tort law. It considers the Indian Supreme Court’s expansion of its fundamental rights jurisprudence over the past thirty years, as well as its effort to transcend the public law/private law divide. It also explains how the Court’s fusion of constitutional law and tort law has affected the independent efficacy, normativity, and analytical basis of equivalent private law claims in India. It argues that the Court’s efforts have only undermined the overall legitimacy of private law mechanisms in the country, and that this phenomenon …
The Case For ‘Firewall’ Protections For Irregular Migrants: Safeguarding Fundamental Rights, Bethany Hastie
The Case For ‘Firewall’ Protections For Irregular Migrants: Safeguarding Fundamental Rights, Bethany Hastie
All Faculty Publications
The issue of irregular migration is experiencing heightened attention in political, social and legal arenas. While deterrence and crime-control discourse and practices dominate current approaches to irregular migration, this article seeks to focus on the problematic neglect of the treatment of irregular migrants in destination countries, in relation to their ability to access fundamental rights and basic public services. This article will put forth an argument for the establishment of firewalls – a separation between immigration enforcement activities and public service provision. This article will canvass existing trends and practices that have both contributed to the erosion of firewall protections, …
A Common Law Constitutionalism For The Right To Education, Scott R. Bauries
A Common Law Constitutionalism For The Right To Education, Scott R. Bauries
Law Faculty Scholarly Articles
This Article makes two claims, one descriptive and the other normative. The descriptive claim is that individual rights to education have not been realized under state constitutions because the currently dominant structure of education reform litigation prevents such realization. In state constitutional education clause claims, both pleadings and adjudication generally focus on the equality or adequacy of the system as a whole, rather than on any particular student's educational resources or attainment. The Article traces the roots of the currently dominant systemic approach, and finds these roots in federal institutional reform litigation. This systemic focus leads to a systemic, rather …
The Myth Of Strict Scrutiny For Fundamental Rights, James E. Fleming, Linda C. Mcclain
The Myth Of Strict Scrutiny For Fundamental Rights, James E. Fleming, Linda C. Mcclain
Faculty Scholarship
Dissenting in Lawrence v. Texas, Justice Scalia stated that, under the Due Process Clause, if an asserted liberty is a "fundamental right," it triggers "strict scrutiny" that almost automatically invalidates any statute restricting that liberty. For strict scrutiny requires that the challenged statute, to be upheld, must further a "compelling governmental interest" and must be "necessary" or "narrowly tailored" to doing so. Scalia also wrote that if an asserted liberty is not a fundamental right, it is merely a "liberty interest" that triggers rational basis scrutiny that is so deferential that the Court all but automatically upholds the statute in …
Universities As Constitutional Law Makers (And Other Hidden Actors In Our Constitutional Orders), Adam J. Macleod
Universities As Constitutional Law Makers (And Other Hidden Actors In Our Constitutional Orders), Adam J. Macleod
Faculty Articles
In the stories told by opinion makers and many law professors, American constitutional law is concerned with two things-individual rights and the powers of government-and it is settled by the Court, which was established by Article III of our national Constitution. In those now-familiar tales, the United States Supreme Court creates constitutional law when heroic individuals assert their fundamental rights against an overreaching state and when Congress, state legislatures, and executive agencies are called upon to justify their expert enactments to an overreaching judiciary. To settle these constitutional disputes the Court looks either to the text of the written Constitution …
The Foundational Importance Of Voting: A Response To Professor Flanders, Joshua A. Douglas
The Foundational Importance Of Voting: A Response To Professor Flanders, Joshua A. Douglas
Law Faculty Scholarly Articles
Voting is the foundational concept for our entire democratic structure. We think of voting as a fundamental-the most fundamental-right in our democracy. When a group of citizens collectively elects its representatives, it affirms the notion that we govern ourselves by free choice. An individual's right to vote ties that person to our social order, even if that person chooses not to exercise that right. Voting represents the beginning; everything else in our democracy follows the right to vote. Participation is more than just a value. It is a foundational virtue of our democracy.
Professor Chad Flanders, in a thought-provoking contribution …
Freedom From Ignorance: The International Duty To Provide Public Education, Areto A. Imoukhuede
Freedom From Ignorance: The International Duty To Provide Public Education, Areto A. Imoukhuede
Faculty Scholarship
This paper argues that public education is an international human right that the U.S. ought to recognise and protect. Recognising a right to public education would correct a major inconsistency in U.S. law by bringing education rights docrtine more in line with international human rights law. This piece discusses how current U.S. education rights doctrine is inconsistent with U.S. tradition and legal precedent. It then demonstrates how international law recognises public education as a fundamental duty of government before arguing for why the U.S. is obligated to follow international law regarding the right to public education.
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, …
Eu Accession To The Echr: Competence, Procedure And Substance, Paul Craig
Eu Accession To The Echr: Competence, Procedure And Substance, Paul Craig
Articles by Maurer Faculty
The issues raised by EU Accession to the ECHR have already generated a valuable and growing literature. This article seeks to contribute to this literature. The discussion begins with an overview of the European Union’s competence to accede to the European Convention on Human Rights, and the process by which the Accession Agreement was negotiated. The focus then shifts to analysis of whether the EU needs its own Charter of Rights in addition to membership of the ECHR.
This is followed by examination of a range of procedural issues raised by EU accession to the ECHR. This includes the choices …
Fear Of Adversariness: Using Gideon To Restrict Defendants' Invocation Of Adversary Procedures, Pamela R. Metzger
Fear Of Adversariness: Using Gideon To Restrict Defendants' Invocation Of Adversary Procedures, Pamela R. Metzger
Faculty Journal Articles and Book Chapters
Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any accused too poor to afford an attorney. But Gideon also promised more. Writ small, Gideon promised to protect individual defendants; writ large, Gideon promised to protect our system of constitutional criminal procedure. Much has been written about Gideon’s broken promise to our poor; this Essay is about Gideon’s broken promise to our system.
With its army of zealous public defenders, Gideon should have produced litigation that vigorously protected the core structures of our adversary trial system. Instead, courts have converted Gideon representation into a Gideon …
The Inalienable Right Of Publicity, Jennifer E. Rothman
The Inalienable Right Of Publicity, Jennifer E. Rothman
All Faculty Scholarship
This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the …
Wedlocked, Mary P. Byrn, Morgan L. Holcomb
Wedlocked, Mary P. Byrn, Morgan L. Holcomb
Faculty Scholarship
For as long as marriage has existed in the United States, divorce has been its necessary opposite. So strong is the need for divorce that the Supreme Court has suggested it is a fundamental right, and every state in the country allows access to no-fault divorce. For opposite-sex couples, legally ending their marriage is possible as a matter of right. For married same-sex couples, however, state DoMAs (Defense of Marriage Acts) have been a stumbling block – preventing access to divorce in some states. Same-sex couples in numerous states are being told by attorneys and judges that they cannot terminate …
Judicial Engagement Through The Lens Of Lee Optical, Randy E. Barnett
Judicial Engagement Through The Lens Of Lee Optical, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Keynote remarks at the symposium on "Judicial Engagement and the Role of Judges in Enforcing the Constitution", delivered on March 22, 2012 at the George Mason University School of Law.
The Nation And Its Heretics: ‘Muslim Citizenship’, State Power And Minority Rights In Pakistan, Sadia Saeed
The Nation And Its Heretics: ‘Muslim Citizenship’, State Power And Minority Rights In Pakistan, Sadia Saeed
Studio for Law and Culture
In 1984, Pakistan’s military ruler General Zia-ul-Haq passed an executive Ordinance that made it a criminal offence for members of the heterodox Ahmadiyya community, a self-defined minority sect of Islam, to refer to themselves as Muslims and practice Islam in public. Ahmadis challenged the 1984 Ordinance in both the Supreme Court and the Federal Shariat Court in Pakistan – in the former on that grounds that the Ordinance violated their constitutionally guaranteed right to freedom of religion and in the latter on the grounds that it violated shari’a. In a clear departure from the Pakistani courts’ earlier rulings on the …
Seeking Deliberation On The Unborn In International Law, S De Freitas, G Myburgh
Seeking Deliberation On The Unborn In International Law, S De Freitas, G Myburgh
Law Papers and Journal Articles
International human rights instruments and jurisprudence radiate an understanding of international law as also serving to protect fundamental rights and the interests of the individual. The idea that human rights provide a credible framework for constructing common norms among nations and across cultures is both powerful and attractive. If the protection of being human serves as the common denominator in human rights discussion, and if human rights are deeply inclusive, despite being culturally and historically diverse, then a failure to deliberate on the legal status and protection of the unborn may be seen as a failure to extend respect where …