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Full-Text Articles in Law

The Road Not Taken: State Constitutions As An Alternative Source Of Protection For Reproductive Rights, Kevin F. O'Neill Oct 1993

The Road Not Taken: State Constitutions As An Alternative Source Of Protection For Reproductive Rights, Kevin F. O'Neill

Law Faculty Articles and Essays

Lawyers seeking constitutional protection for reproductive rights have relied almost exclusively on a liberty/privacy theory under the Federal Constitution. In the wake of Planned Parenthood of Southeastern Pennsylvania v. Casey, this theory may be seen as providing a floor of minimum protection-preventing states from banning abortion outright. But it is not strong enough to prevent states from enacting restrictions on the availability of abortion. Thus, the battle over reproductive rights may be seen as shifting from one phase ("Can abortion be banned?") to another ("How far can states go in restricting access to abortion'?"). If proponents of reproductive freedom are …


Is There A Law Of Federal Courts, Gene R. Nichol Sep 1993

Is There A Law Of Federal Courts, Gene R. Nichol

West Virginia Law Review

No abstract provided.


Procedure As A Guarantee Of Democracy: The Legacy Of The Perestroika Parliament, Frances H. Foster Apr 1993

Procedure As A Guarantee Of Democracy: The Legacy Of The Perestroika Parliament, Frances H. Foster

Vanderbilt Journal of Transnational Law

In this Article, the author chronicles the rise and fall of the "perestroika parliament." While Gorbachev's reforms were ultimately unsuccessful in producing effective democratic representation, the author believes that the history of these reforms provides some valuable lessons for post-Soviet Russia. Specifically, Professor Foster concludes that current reformers in Russia should learn from the failed perestroika parliament that a democratic, "rule-of-law" state requires uniform lawmaking procedures with constitutional safeguards to guarantee their integrity.


Did The Slaves Author The Thirteenth Amendment? An Essay In Redemptive History, Guyora Binder Jan 1993

Did The Slaves Author The Thirteenth Amendment? An Essay In Redemptive History, Guyora Binder

Journal Articles

American constitutional interpretation is deeply traditionalist, and privileges original intent. The difficulty with thus authorizing the past in interpreting the Thirteenth Amendment is that it purports to abolish custom and tradition as unjust. This essay argues that, given the Amendment’s denunciation of the polity that enacted it as illegitimate, its questionable formal pedigree, and the agency of the slaves in precipitating, defining, and resolving the crisis that enabled it, the slaves have a moral claim to status as its authors. It follows that the original intent guiding interpretation should be that of the slaves themselves.


The Difficulty Of Amending The Constitution Of Canada, Peter W. Hogg Jan 1993

The Difficulty Of Amending The Constitution Of Canada, Peter W. Hogg

Osgoode Hall Law Journal

The Charlottetown Accord of 1992 was a set of proposals for amendments to the Constitution of Canada. These proposals were designed to achieve a national settlement of a variety of constitutional grievances, chiefly those arising from Quebec nationalism, western regionalism, and Aboriginal deprivation. The Accord was defeated in a national referendum. In the case of Quebec, the defeat of the Charlottetown Accord, following as it did on the defeat of the Meech Lake Accord, has made the option of secession relatively more attractive, but there are sound pragmatic reasons to hope that Quebec will not make that choice. In the …


Rights, Revolution, And The Paradox Of Constitutionalism: The Processes Of Constitutional Change In Pennsylvania, Harry L. Witte Jan 1993

Rights, Revolution, And The Paradox Of Constitutionalism: The Processes Of Constitutional Change In Pennsylvania, Harry L. Witte

Harry L Witte

No abstract provided.


Lee V. Weisman: Whither The Establishment Clause And The Lemon V. Kurtzman Three Pronged Test?, Thomas A. Schweitzer Jan 1993

Lee V. Weisman: Whither The Establishment Clause And The Lemon V. Kurtzman Three Pronged Test?, Thomas A. Schweitzer

Scholarly Works

No abstract provided.


Reasonable Expectations Of Privacy And Autonomy In Fourth Amendment Cases: An Empirical Look At "Understandings Recognized And Permitted By Society", Christopher Slobogin, Joseph E. Schumacher Jan 1993

Reasonable Expectations Of Privacy And Autonomy In Fourth Amendment Cases: An Empirical Look At "Understandings Recognized And Permitted By Society", Christopher Slobogin, Joseph E. Schumacher

Vanderbilt Law School Faculty Publications

This Article reports an attempt to investigate empirically important aspects of the Fourth Amendment to the United States Constitution, as construed by the United States Supreme Court. In the course of doing so, it touches upon two other topics. Most directly, it addresses the appropriate scope of the Fourth Amendment. Less directly, it raises questions about the role that empirical research should play in fashioning constitutional rules.


Defendants' Brief In The School Finance Case: Mcduffy V. Robertson: An Excerpt And A Summary, Mary Connaughton Jan 1993

Defendants' Brief In The School Finance Case: Mcduffy V. Robertson: An Excerpt And A Summary, Mary Connaughton

Faculty Scholarship

The wisdom of promoting public education in the Commonwealth was recognized by the earliest settlers, the framers of the Constitution, and many subsequent legislatures, officials, educators and citizens. The opinions of the Department, the Secretary of Education, the Governor and various educators, contained in the stipulation, demonstrate that a policy of supporting public education is as important today as ever.2

The implementation of this policy goal by the Legislature and municipalities involves choices that are at the heart of representative government: how much public money to raise, how best to allocate the money among education and the many other …


The Role Of Public Opinion In Constitutional Interpretation, James G. Wilson Jan 1993

The Role Of Public Opinion In Constitutional Interpretation, James G. Wilson

Law Faculty Articles and Essays

This Article seeks to answer two questions. First, to what degree has public opinion influenced American constitutional interpretation, both on and off the Supreme Court, over the past two centuries? Second, how much weight, if any, should constitutional decision-makers give to public opinion, however that protean concept is defined? The Article initially places these queries in a contemporary context by considering the extended discussion of public opinion in the Planned Parenthood v. Casey opinions of Justice Souter, Chief Justice Rehnquist, and Justice Scalia. Justice Souter partially relied on public opinion to not overrule the constitutional right to an abortion created …


Constitutional Law And The Myth Of The Great Judge, Michael S. Ariens Jan 1993

Constitutional Law And The Myth Of The Great Judge, Michael S. Ariens

Faculty Articles

One of the enduring myths of American history, including constitutional history, is that of the “Great Man” or “Great Woman.” The idea is that, to understand the history of America, one needs to understand the impact made by Great Men and Women whose actions affected the course of history. In political history, one assays the development of the United States through the lives of great Americans, from the “Founders” to Abraham Lincoln to John F. Kennedy. Similarly, in constitutional history, the story is told through key figures, the “Great Judges,” from John Marshall to Oliver Wendell Holmes to Earl Warren. …


Advocacy And Scholarship, Paul F. Campos Jan 1993

Advocacy And Scholarship, Paul F. Campos

Publications

The apex of American legal thought is embodied in two types of writings: the federal appellate opinion and the law review article. In this Article, the author criticizes the whole enterprise of doctrinal constitutional law scholarship, using a recent U.S. Supreme Court case and a Harvard Law Review article as quintessential examples of the dominant genre. In a rhetorical tour de force, the author argues that most of modern constitutional scholarship is really advocacy in the guise of scholarship. Such an approach to legal scholarship may have some merit as a strategic move towards a political end; however, it has …


Lemon Lives, Daniel O. Conkle Jan 1993

Lemon Lives, Daniel O. Conkle

Articles by Maurer Faculty

This article responds to an article by Professor Michael Stokes Paulsen, entitled "Lemon Is Dead," in which Paulsen interprets the Supreme Court's decision in Lee v. Weisman to repudiate the Establishment Clause test of Lemon v. Kurtzman and to replace it with a test that limits the Clause to cases involving direct or indirect coercion. The article disputes Paulsen's interpretation of Weisman, and it also disputes his normative argument in support of the coercion approach. It contends that Lemon survives Weisman, and that Lemon's multi-faceted and context-specific approach, however vague, is preferable to a test that focuses exclusively on the …


Recent Constitutional Decisions In Indiana, Patrick L. Baude Jan 1993

Recent Constitutional Decisions In Indiana, Patrick L. Baude

Articles by Maurer Faculty

No abstract provided.


Federalism, The Commerce Clause, And Equal Protection, Leon Friedman Jan 1993

Federalism, The Commerce Clause, And Equal Protection, Leon Friedman

Touro Law Review

No abstract provided.


Shaw V. Reno: On The Borderline, Emily Calhoun Jan 1993

Shaw V. Reno: On The Borderline, Emily Calhoun

Publications

No abstract provided.


Silence And The Word, Paul Campos Jan 1993

Silence And The Word, Paul Campos

Publications

No abstract provided.


Name-Calling And The Clear Error Rule, Robert F. Nagel Jan 1993

Name-Calling And The Clear Error Rule, Robert F. Nagel

Publications

No abstract provided.


Disagreement And Interpretation, Robert F. Nagel Jan 1993

Disagreement And Interpretation, Robert F. Nagel

Publications

No abstract provided.


How To Do Things With The First Amendment, Pierre Schlag Jan 1993

How To Do Things With The First Amendment, Pierre Schlag

Publications

No abstract provided.


Girls Should Bring Lawsuits Everywhere . . . Nothing Will Be Corrupted: Pornography As Speech And Product, Marianne Wesson Jan 1993

Girls Should Bring Lawsuits Everywhere . . . Nothing Will Be Corrupted: Pornography As Speech And Product, Marianne Wesson

Publications

No abstract provided.