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Articles 1 - 24 of 24
Full-Text Articles in Law
Section 7: Constitutional Structure: Federalism, Administrative Law, Checks And Balances, Institute Of Bill Of Rights Law, William & Mary Law School
Section 7: Constitutional Structure: Federalism, Administrative Law, Checks And Balances, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
God Is As God Does: Law, Anthropology, And The Definition Of "Religion", James M. Donovan
God Is As God Does: Law, Anthropology, And The Definition Of "Religion", James M. Donovan
Law Faculty Scholarly Articles
This Article first discusses the judicial deliberations upon the definition of religion. That discussion adopts a chronological sequence because, in legal matters, that is the one that counts.
It can be a tedious, but not particularly difficult task to summarize the legal struggle to define religion. The strategy applied to evaluate the product of that struggle is intellectual triangulation, whereby bearings from two fixed positions are used to specify that of that third. By analogy, the correct definition of "religion" can be identified by finding where the legal efforts intersect with an independent sighting of the same target. Where this …
God Is As God Does: Law, Anthropology, And The Definition Of "Religion", James M. Donovan
God Is As God Does: Law, Anthropology, And The Definition Of "Religion", James M. Donovan
James M. Donovan
This Article first discusses the judicial deliberations upon the definition of religion. That discussion adopts a chronological sequence because, in legal matters, that is the one that counts.
It can be a tedious, but not particularly difficult task to summarize the legal struggle to define religion. The strategy applied to evaluate the product of that struggle is intellectual triangulation, whereby bearings from two fixed positions are used to specify that of that third. By analogy, the correct definition of "religion" can be identified by finding where the legal efforts intersect with an independent sighting of the same target. Where this …
Unconstitutional Incontestability?: The Intersection Of The Intellectual Property And Commerce Clauses Of The Constitution: Beyond A Critique Of Shakespeare Co. V. Silstar Corp., Malla Pollack
Malla Pollack
This article makes several assertions: (1) The Intellectual Property Clause of the Constitution, even read with the Commerce Clause, prevents Congress from giving authors or inventors exclusive rights unbounded by premeasured time limitations; (2) Because such limits exist, even incontestable trademarks must be subject to functionality challenges in order to prevent conflict with the Patent Clause; (3) The Intellectual Property Clause requires a similar challenge to prevent conflict with the Copyright Clause; (4) The states are also limited by either direct constitutional mandate or statutory preemption. Based on the first two assertions, this article argues that the Fourth Circuit's decision …
Constitutional Torts: Combining Diverse Doctrines And Practicality, Thomas A. Eaton, Michael Wells
Constitutional Torts: Combining Diverse Doctrines And Practicality, Thomas A. Eaton, Michael Wells
Scholarly Works
Constitutional Torts is, in part, a response to our sense that the upper level curriculum could be improved by courses that bring together areas of doctrine that are often studied in isolation. We think there is substantial value in bringing together seemingly disparate areas of doctrine that bear on a common real-world problem. Students benefit from learning how to put together concepts from different substantive areas in order to solve problems they will face in practice.
Ethnicity And The Constitution: Beyond The Black And White Binary Constitution, Juan F. Perea
Ethnicity And The Constitution: Beyond The Black And White Binary Constitution, Juan F. Perea
William & Mary Law Review
No abstract provided.
Invitation To The Twenty-Third Annual John F. Sonnett Memorial Lecture Series: The Decline Of Professionalism, Warren E. Burger
Invitation To The Twenty-Third Annual John F. Sonnett Memorial Lecture Series: The Decline Of Professionalism, Warren E. Burger
Miscellaneous
Invitation to "The Decline of Professionalism" by Chief Justice Warren E. Burger of the United States Supreme Court (1969-1986).
The Religious Freedom Restoration Act: Establishment, Equal Protection And Free Speech Concerns, William P. Marshall
The Religious Freedom Restoration Act: Establishment, Equal Protection And Free Speech Concerns, William P. Marshall
Faculty Publications
No abstract provided.
1995-96 Supreme Court Preview: Mock Arguments In Romer V. Evans, Michael J. Gerhardt, Tracey Maclin
1995-96 Supreme Court Preview: Mock Arguments In Romer V. Evans, Michael J. Gerhardt, Tracey Maclin
Faculty Publications
No abstract provided.
Political And Social Construction Of Families Through Pedagogy In Family Law Classrooms, Lundy Langston
Political And Social Construction Of Families Through Pedagogy In Family Law Classrooms, Lundy Langston
Journal Publications
Most family law materials available today fail to reflect the diversity' of family arrangements in modem society. Traditionally, family law is taught as a rules-based area of law. Students learn the requirements of marriage and the grounds for and consequences of divorce. Currently, there are efforts to expand the codification of family law through such things as support guidelines, uniform acts, and legislation listing specific factors to be considered in custody and property distribution cases. Many of these efforts stem from the underlying assumption that there is a uniform methodology describing and defining doctrine appropriate for resolution of family related …
Charles Fairman, Felix Frankfurter, And The Fourteenth Amendment, Richard L. Aynes
Charles Fairman, Felix Frankfurter, And The Fourteenth Amendment, Richard L. Aynes
Akron Law Faculty Publications
The scope of the Fourteenth Amendment determines, in large measure, the allocation of responsibility and power between the states and the government of the United States. It has been characterized as “the most significant [[[Amendment] in our history” and a “second American Constitution.” It is therefore not surprising that some of the most important disputes in the United States Supreme Court have been over the meaning of the Fourteenth Amendment and that the disputes have involved some of the most important legal thinkers of our times.
In the twentieth century, one of the most familiar articulations of differing views occurred …
Judicial Selection In The People’S Democratic Republic Of Pennsylvania: Here The People Rule?, Harry L. Witte
Judicial Selection In The People’S Democratic Republic Of Pennsylvania: Here The People Rule?, Harry L. Witte
Harry L Witte
No abstract provided.
What's Wrong With Exploitation?, Justin Schwartz
What's Wrong With Exploitation?, Justin Schwartz
Justin Schwartz
Abstract: Marx thinks that capitalism is exploitative, and that is a major basis for his objections to it. But what's wrong with exploitation, as Marx sees it? (The paper is exegetical in character: my object is to understand what Marx believed,) The received view, held by Norman Geras, G.A. Cohen, and others, is that Marx thought that capitalism was unjust, because in the crudest sense, capitalists robbed labor of property that was rightfully the workers' because the workers and not the capitalists produced it. This view depends on a Labor Theory of Property (LTP), that property rights are based ultimately …
A Critical Reassessment Of The Case Law Bearing On Congress's Power To Restrict The Jurisdiction Of The Lower Federal Courts, Gordon G. Young
A Critical Reassessment Of The Case Law Bearing On Congress's Power To Restrict The Jurisdiction Of The Lower Federal Courts, Gordon G. Young
Faculty Scholarship
No abstract provided.
The Passive-Aggressive Virtues: Cohen V. Virginia And The Problematic Establishment Of Judicial Power, Mark A. Graber
The Passive-Aggressive Virtues: Cohen V. Virginia And The Problematic Establishment Of Judicial Power, Mark A. Graber
Faculty Scholarship
No abstract provided.
Old Wine In New Bottles: The Constitutional Status Of Unconstitutional Speech, Mark A. Graber
Old Wine In New Bottles: The Constitutional Status Of Unconstitutional Speech, Mark A. Graber
Faculty Scholarship
This Article explores whether contemporary advocates of restrictions on bigoted expression have more in common with contemporary advocates of broad First Amendment rights or with past censors. The critical theorists who would ban some hate speech rely heavily on the equal citizenship principles that radical civil libertarians believe justify almost absolute speech rights. The First Amendment, past and present censors argue, does not fully protect speech inconsistent with what they believe are basic constitutional values. This claim repudiates a basic principle of American constitutionalism, the faith that "self-evident" constitutional values will triumph in the constitutional marketplace of ideas. The ideological …
Charles Fairman, Felix Frankfurter, And The Fourteenth Amendment, Richard L. Aynes
Charles Fairman, Felix Frankfurter, And The Fourteenth Amendment, Richard L. Aynes
Richard L. Aynes
The scope of the Fourteenth Amendment determines, in large measure, the allocation of responsibility and power between the states and the government of the United States. It has been characterized as “the most significant [[[Amendment] in our history” and a “second American Constitution.” It is therefore not surprising that some of the most important disputes in the United States Supreme Court have been over the meaning of the Fourteenth Amendment and that the disputes have involved some of the most important legal thinkers of our times. In the twentieth century, one of the most familiar articulations of differing views occurred …
The Constitution Of Belarus: A Good First Step Towards The Rule Of Law, Gary M. Shaw
The Constitution Of Belarus: A Good First Step Towards The Rule Of Law, Gary M. Shaw
Scholarly Works
No abstract provided.
Constitutional Law - Constitutional Assessment Of State And Municipal Residential Hiring Preference Laws, George T. Reynolds
Constitutional Law - Constitutional Assessment Of State And Municipal Residential Hiring Preference Laws, George T. Reynolds
Villanova Law Review
No abstract provided.
Opening The Courthouse Doors: Allowing A Cause Of Action To Arise Directly From A Violation Of The Ohio Constitution, David M. Gareau
Opening The Courthouse Doors: Allowing A Cause Of Action To Arise Directly From A Violation Of The Ohio Constitution, David M. Gareau
Cleveland State Law Review
This note will explain why Ohio's Constitution should be looked to as the source of meaningful remedy when its provisions are violated. I will demonstrate that a cause of action grounded upon a violation of the Ohio Constitution is not only meaningful, but necessary to the notion of constitutional rights. Section two will briefly discuss the necessity of allowing a cause of action to arise from a violation of the Ohio Constitution. In particular, I will discuss the independence of the Ohio Constitution; the federal courts' increasing hostility toward the vindication of federal constitutional rights; and the benefit of allowing …
The Proposed Equal Protection Fix For Abortion Law: Reflections On Citizenship, Gender, And The Constitution, Anita L. Allen
The Proposed Equal Protection Fix For Abortion Law: Reflections On Citizenship, Gender, And The Constitution, Anita L. Allen
All Faculty Scholarship
No abstract provided.
Does Pro-Choice Mean Pro-Kevorkian? An Essay On Roe, Casey, And The Right To Die, Seth F. Kreimer
Does Pro-Choice Mean Pro-Kevorkian? An Essay On Roe, Casey, And The Right To Die, Seth F. Kreimer
All Faculty Scholarship
No abstract provided.
Making Conditions Constitutional By Attaching Them To Welfare: The Dangers Of Selective Contextual Ignorance Of The Unconstitutional Conditions Doctrine, Julie Nice
Julie A. Nice
This article examines the lack of judicial consistency in applying the Unconstitutional Conditions doctrine with regard to the same constitutional guarantee but involving different public benefits. Professor Nice posits that the courts frequently apply a lower level of scrutiny when conditions are attached to welfare benefits than when conditions are attached to other types of government benefits. She specifically examines this inconsistency among decisions involving Free Exercise and Takings. She shows that the Supreme Court has reduced its regular level of heightened scrutiny and instead applied Dandridge-style deference to uphold welfare conditions. For example, in a series of free exercises …
La Reforma Judicial De 1994 Y Las Acciones De Inconstitucionalidad, Héctor Fix Fierro
La Reforma Judicial De 1994 Y Las Acciones De Inconstitucionalidad, Héctor Fix Fierro
Héctor Fix Fierro
No abstract provided.