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2001

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Full-Text Articles in Law

Speech Or Not: Applying Election Law Strict Scrutiny To Campaign Finance Regulations, Michael Marcucci Dec 2001

Speech Or Not: Applying Election Law Strict Scrutiny To Campaign Finance Regulations, Michael Marcucci

Boston College Law Review

This Note will argue that even if money is not speech for First Amendment purposes, campaign contributions and expenditures are still crucial elements of the electoral process and ought to receive some constitutional protection. The United States Supreme Court has in its own election law jurisprudence the analytical tools required to strike a proper balance between the constitutional necessity of a free electoral system and the need to keep elections fair, open, honest and free from corruption. This Note will argue that under the Elections Clause and Qualifications Clause of the United States Constitution, Congress has neither plenary power to ...


Baker V. State And The Promise Of The New Judicial Federalism, Charles H. Baron, Lawrence Friedman Dec 2001

Baker V. State And The Promise Of The New Judicial Federalism, Charles H. Baron, Lawrence Friedman

Boston College Law School Faculty Papers

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article ...


Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman Nov 2001

Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman

Charles H. Baron

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article ...


Understanding Islam And The Radicals, David F. Forte Oct 2001

Understanding Islam And The Radicals, David F. Forte

Law Faculty Articles and Essays

The United States is in a war, but it is not a war between Islam and the West. Radical Islamic terrorists hijacked four airplanes and killed thousands of innocent Americans on September 11. But their enmity was not just directed against the United States and the civilization it represents. These terrorists also mean, as President Bush made clear in his speech to the Joint Session of Congress recently, to hijack Islam itself and destroy Islamic civilization. In the developing battle on behalf of these two great civilizations, it is imperative that we understand something about the basic traditions of Islam ...


Reforms In Florida After The 2000 Presidential Election, Jon L. Mills Oct 2001

Reforms In Florida After The 2000 Presidential Election, Jon L. Mills

UF Law Faculty Publications

Much has been written concerning the Florida recount, and the final U.S. Supreme Court decision in Bush v. Gore. Moreover, the popular media has mostly focused on the negatives of the Florida recount without delving into the exact reasons why Florida became the epicenter of this controversy. Not much has been written pinpointing the actual circumstances precipitating Florida's position after the election, nor discussing the theoretical underpinning of Florida election law, which embraces a broad liberal concept of respecting the “will of the voter.”

By examining both the actual circumstances surrounding Florida in 2000 and recognizing that Florida ...


The Politics Of Bush V. Gore, Evan Tsen Lee Oct 2001

The Politics Of Bush V. Gore, Evan Tsen Lee

The Journal of Appellate Practice and Process

Critical Legal Studies ("the Crits") burst onto the law school scene in the mid-1970s. The Crits believe that "all law is politics." The Crits lost their momentum by the 1990s. The case Bush v. Gore has forced many to believe that all law is in fact politics.


When The President Says No: A Few Thoughts On Executive Power And The Tradition Of Solicitor General Independence, Drew S. Days Iii Oct 2001

When The President Says No: A Few Thoughts On Executive Power And The Tradition Of Solicitor General Independence, Drew S. Days Iii

The Journal of Appellate Practice and Process

The Solicitor General of the United States generally enjoys a position of independence. However, there are times when the President of the United States intervenes. This is usually done under the radar so documentation of presidential influence is rare. This essay examines recent presidential influence over the Solicitor General.


The Evolving Role Of The State Solicitor: Toward The Federal Model, James R. Layton Oct 2001

The Evolving Role Of The State Solicitor: Toward The Federal Model, James R. Layton

The Journal of Appellate Practice and Process

A state solicitor gives an attorney general a specialist to turn to for appellate advice. The solicitor's ability to influence what position the state takes and what cases to pursue allows the solicitor to affect the development of law. The number of states with solicitors has grown from eight to twenty-four since 1987. Despite the similarities between state solicitors and the Solicitor General of the United States, there are many differences between the two roles.


Can Process Theory Constrain Courts?, Michael C. Dorf, Samuel Issacharoff Oct 2001

Can Process Theory Constrain Courts?, Michael C. Dorf, Samuel Issacharoff

Cornell Law Faculty Publications

The political process theory introduced by the Carolene Products footnote and developed through subsequent scholarship has shaped much of the modern constitutional landscape. Process theory posits that courts may justifiably intervene in the political arena when institutional obstacles impede corrective action by political actors themselves. Judged by this standard, the United States Supreme Court's decision in Bush v. Gore was a failure, because the majority could not explain why its interference was necessary. More broadly, Bush v. Gore points to a central deficiency in process theory: it relies upon the Justices to guard against their own overreaching, but does ...


Gender Politics In Massachusetts: Progress For Paid Family Leave, Elizabeth A. Sherman Sep 2001

Gender Politics In Massachusetts: Progress For Paid Family Leave, Elizabeth A. Sherman

New England Journal of Public Policy

Advances in the educational and occupational status of women in the United States over the past quarter century have greatly expanded the participation of women in the workforce. However, economic and social changes in women’s lives have put pressure on traditional family roles and on the political system to respond to the problems families face balancing work and family responsibilities. Initiatives for paid family leave in Massachusetts reflect the newfound political strength of women in politics — as leaders of political organizations, as elected officials, and as voters — and the willingness of the state’s political elite to grapple with ...


Redistricting On Beacon Hill And Political Power On Capitol Hill: Ancient Legacies And Present-Day Perils, Richard A. Hogarty, Garrison Nelson Sep 2001

Redistricting On Beacon Hill And Political Power On Capitol Hill: Ancient Legacies And Present-Day Perils, Richard A. Hogarty, Garrison Nelson

New England Journal of Public Policy

This article discusses legislative reapportionment and past efforts to manipulate district lines as far back as the legendary Elbridge Gerry in the early nineteenth century. Specifically, it deals with what political history has to tell us about the current furor over House Speaker Thomas Finneran’s proposed congressional redistricting. More than any other state in the Union, the Massachusetts lawmakers in the U.S. House of Representatives have enjoyed disproportionate power as a result of a bipartisan strategy of incumbency protection dating back to the 1940s. That power may be in jeopardy if Speaker Finneran implements his plans to create ...


Terrorism And Remorse: Psychology And The Death Penalty, Ibpp Editor Jul 2001

Terrorism And Remorse: Psychology And The Death Penalty, Ibpp Editor

International Bulletin of Political Psychology

This article provides commentary on the forensic psychological task to develop information bearing on penalties for convicted terrorists.


Trends. Human Rights And Politics: The Wrong Argument Against The International Criminal Court, Ibpp Editor Jul 2001

Trends. Human Rights And Politics: The Wrong Argument Against The International Criminal Court, Ibpp Editor

International Bulletin of Political Psychology

This article discusses the International Criminal Court, or ICC. At issue is the contention that the ICC has been used primarily as a political tool for settling vendettas against the governments of nation-states and/or the leaders of these states instead of furthering human rights through adjudicating allegations of genocide, crimes against humanity, and war crimes.


You've Taken An Oath To Support The Constitution, Now What? The Constitutional Requirement For A Congressional Oath Of Office, Vic Snyder Jul 2001

You've Taken An Oath To Support The Constitution, Now What? The Constitutional Requirement For A Congressional Oath Of Office, Vic Snyder

University of Arkansas at Little Rock Law Review

No abstract provided.


Are Tax "Benefits" For Religious Institutions Constitutionally Dependent On Benefits For Secular Entities?, Edward A. Zelinsky Jul 2001

Are Tax "Benefits" For Religious Institutions Constitutionally Dependent On Benefits For Secular Entities?, Edward A. Zelinsky

Boston College Law Review

The Supreme Court generally conditions tax - exemptions, deductions, and- exclusions for religious organizations and activities upon the simultaneous extension of such benefits to secular institutions and undertakings. The Court's position flows logically from its acceptance of the premise that tax exemptions, deductions, and exclusions constitute subsidies. However, the "subsidy" label is usually deployed in a conclusory and unconvincing fashion. The First Amendment is best understood 'as permitting governments to refrain from taxation to accommodate the autonomy of religious actors and activities; hence, tax benefits extended solely to religious institutions should pass constitutional Muster as recognition of that autonomy.


Of Politics And Pulpits: A First Amendment Analysis Of Irs Restrictions On The Political Activities Of Religious Organizations, Steffen N. Johnson Jul 2001

Of Politics And Pulpits: A First Amendment Analysis Of Irs Restrictions On The Political Activities Of Religious Organizations, Steffen N. Johnson

Boston College Law Review

This Article explores some of the policy justifications offered in support of restricting the political activities of tax-exempt religious organizations. The author begins with an overview of the scope of current federal restrictions and then considers the contention that it is inappropriate for religious organizations to be involved in politics from their own standpoint. He argues that federal restrictions on the political activities of tax-exempt religious organizations raise a fundamental question of mission that must be resolved by each organization according to its conscience. The author also considers restrictions front the standpoint of public policy and constitutional law, with a ...


A Quiet Faith? Taxes, Politics, And The Privatization Of Religion, Richard W. Garnett Jul 2001

A Quiet Faith? Taxes, Politics, And The Privatization Of Religion, Richard W. Garnett

Boston College Law Review

The government exempts religious associations front taxation and, in return, restricts their putatively political expression and activities. This exemption-and-restriction scheme invites government to interpret and categorize the means by which religious communities live out their vocations and engage the world. But government is neither well-suited nor to be trusted with this kind of line-drawing. What's more, this invitation is dangerous to authentically religious consciousness and associations. When government communicates and enforces its own view of the nature of religion—i.e., that it is a private matter—and of its proper place—i.e., in the private sphere, not ...


Churches, Politics, And The Charitable Contribution Deduction, Ellen P. Aprill Jul 2001

Churches, Politics, And The Charitable Contribution Deduction, Ellen P. Aprill

Boston College Law Review

Churches often bear the burden of the Internal Revenue Code's electioneering prohibition without their contributors enjoying the benefit of a tax deduction. Although contributions to religious congregations may be deducted, many, perhaps most of them, are not because many of those who give to churches do not itemize their income tax deductions. In the past two years, Congress has had before it several bills that would permit nonitenizing taxpayers to deduct their charitable contributions. This Article argues that, extending the deduction to nonitemizers raises important issues of tax policy that should concern religious organizations. The author contends that religious ...


How To Steal A Trillion: The Uses Of Laws About Lawmaking In 2001, Charles Tiefer Jul 2001

How To Steal A Trillion: The Uses Of Laws About Lawmaking In 2001, Charles Tiefer

All Faculty Scholarship

How did Congress pass President Bush's 2001 trillion-dollar tax cut pass without the necessary consensus shape and without the 60 Senate votes required to overcome resistance? How was the House able to give "fast track" treatment to laws designed to implement future trade deals? How was the 2001 Congress able to reject a new workplace ergonomic rule that would otherwise become law? In 2001, American lawmakers passed laws to make controversial laws, forcing the important question about whether laws about lawmaking actually serve the public interest.

In this article, the author explores the constitutional limits on laws about lawmaking ...


Hybrid Organizations And The Alignment Of Interests: The Case Of Fannie Mae And Freddie Mac, Jonathan G.S. Koppell Jul 2001

Hybrid Organizations And The Alignment Of Interests: The Case Of Fannie Mae And Freddie Mac, Jonathan G.S. Koppell

Publications from President Jonathan G.S. Koppell

This article explores the political influence of government-sponsored enterprises (GSEs). Using Congress's overhaul of the regulatory infrastructure for Fannie Mae and Freddie Mac as a case study, the article presents two principal findings: (1) The characteristics that distinguish government-sponsored enterprises from traditional government agencies and private companies endow Fannie Mae and Freddie Mac with unique political resources; and (2) the alignment of interest groups around Fannie Mae and Freddie Mac is subject to strategic manipulation by the GSEs. A triangular model of this alignment is proposed and employed to analyze the legislative outcome. The case has implications for students ...


When Money Talks: Reconciling Buckley, The First Amendment, And Campaign Finance Reform, Stephanie Pestorich Manson Jun 2001

When Money Talks: Reconciling Buckley, The First Amendment, And Campaign Finance Reform, Stephanie Pestorich Manson

Washington and Lee Law Review

No abstract provided.


Organizational Demonization: The Fbi As Sinner, Ibpp Editor May 2001

Organizational Demonization: The Fbi As Sinner, Ibpp Editor

International Bulletin of Political Psychology

This article describes several descriptive attributions that might "explain" the Federal Bureau of Investigation (FBI) not providing all available information relevant to criminal cases to parties legally authorized to receive such information.


The 2000 Presidential Election: Archetype Or Exception?, Michael C. Dorf May 2001

The 2000 Presidential Election: Archetype Or Exception?, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.


Is Science Ever Science? The Politics Of Child Care, Ibpp Editor Apr 2001

Is Science Ever Science? The Politics Of Child Care, Ibpp Editor

International Bulletin of Political Psychology

This article explores the political behavior of psychologists in the carrying out of scientific tasks.


A Tribute To Governor Mel Carnahan, Kenneth D. Dean Apr 2001

A Tribute To Governor Mel Carnahan, Kenneth D. Dean

Faculty Publications

A Tribute to Governor Mel Carnahan


Identity Crisis: “Intersectionality,” “Multidimensionality,” And The Development Of An Adequate Theory Of Subordination, Darren Lenard Hutchinson Apr 2001

Identity Crisis: “Intersectionality,” “Multidimensionality,” And The Development Of An Adequate Theory Of Subordination, Darren Lenard Hutchinson

UF Law Faculty Publications

While essentialism remains a prominent feature of progressive social movements, critical scholars have offered persuasive arguments against traditional, single-issue politics and have proposed reforms in a variety of doctrinal and policy contexts. The feminist of color critiques of feminism and antiracism provided the earliest framework for analyzing oppression in complex terms. Feminists of color and other critical scholars have examined racism and patriarchy as “intersecting” phenomena, rather than as separate and mutually exclusive systems of domination. Their work on the intersectionality of subordination has encouraged some judges and progressive scholars to discard the “separate spheres” analysis of race and gender ...


Facilitating Communications And Murder: Operation Condor And United States Complicity, Ibpp Editor Mar 2001

Facilitating Communications And Murder: Operation Condor And United States Complicity, Ibpp Editor

International Bulletin of Political Psychology

This article explores levels of United States Government (USG) complicity during the late 1970s in the murder of individuals alleged to have been left-wing opponents of South American, right-wing, authoritarian governments.


Politics, Gay Rights And The Light At The End Of The Rainbow, Mary Lafrance Mar 2001

Politics, Gay Rights And The Light At The End Of The Rainbow, Mary Lafrance

Nevada Law Journal

No abstract provided.


Jones V. Clinton: A Study In Politically Motivated Suits, Rule 1 1, And The First Amendment, Carol Rice Andrews Mar 2001

Jones V. Clinton: A Study In Politically Motivated Suits, Rule 1 1, And The First Amendment, Carol Rice Andrews

BYU Law Review

No abstract provided.


The Place Of Form In The Fundamentals Of Law, Robert S. Summers Mar 2001

The Place Of Form In The Fundamentals Of Law, Robert S. Summers

Cornell Law Faculty Publications

The author explains that there is scope for a general theory about the nature and place of form in the fundamentals of law. Form organizes the institutions, rules and other varieties of law, and the system as a whole. All such constructs have non-formal elements, too, but form unifies each construct and provides its criteria of identity. Appropriate form makes a system of law possible. It also tends to beget good content in the law. It is indispensable to the basic needs of a legal system, and when such an end is organizational, as with democracy, liberty, and the rule ...