Law Commons^™

40 Years After Gideon V. Wainwright: A Constitutional Crisis, Mary Sue Backus

Mary Sue Backus

No abstract provided.

Not Dea'd Yet: Gonzalez V. Oregon, Charles Baron

Charles H. Baron

On January 17, the Oregon Death with Dignity Act beat back yet another attempt on its life. In Gonzales v. Oregon, the U.S. Supreme Court (by a six-to-three vote) affirmed decisions of two lower federal courts and made permanent a 2001 injunction against federal prosecution of physicians who prescribe narcotics under the terms of the act. Media coverage of the decision both exaggerated and underplayed the decision’s significance.

Trends In Constitutional Environmental Law, James R. May

James R. May

This article is about the growing field at the intersection of environmental and constitutional law. Thirty years ago, constitutional issues rarely arose in environmental law. Nowadays, nearly two in three federal environmental, energy and land use cases are decided on constitutional grounds invoking no fewer than 18 issues. These include the extent to which Congress can regulate activities that are either traditionally intrastate or not inherently economic in nature (the Commerce Clause), preempt state causes of action (Supremacy Clause), and prescribe state functions (10th Amendment) or subject them to federal actions (11th Amendment). Other issues include whether states can burden …

Presidential Signing Statements: How To Find Them, How To Use Them, And What They Might, Steve Sheppard

Steve Sheppard

Lawyers should be cautious when seeking guidance in statutory interpretation from presidential signing statements. Reliance on signing statements as a source of statutory interpretation is controversial, as deference to the president’s interpretation, rather than interpretations of the legislature or judiciary, can lead to unlimited executive power. Signing statements can be retrieved from government resources or private vendors, and they are useful for advising clients how to interact with government agencies. In effect, signing statements act as orders from the president, which agencies under the executive chain of command follow.

Signing statements are also useful as sources of statutory interpretation when …

Las Paradojas De La Democracia Deliberativa / The Paradoxes Of Deliberative Democracy, Andres Palacios Lleras

Andrés Palacios Lleras

Este artículo argumenta por qué la teoría de la democracia deliberativa es problemática y paradójica, y por lo tanto inadecuada para desarrollar las instituciones democráticas contemporáneas, o para reemplazarlas por otras. Es una teoría problemática porque parte de una postura epistemológica difícilmente sostenible. Es paradójica porque a pesar de ser presentada como incluyente a nivel social, la idea de deliberación que presenta y considera como deseable, es demasiado exigente como para ser realizada por toda clase de personas; y es de hecho, elitista en este aspecto. Pero también porque señala que las instancias que están mejor diseñadas para tomar decisiones …

Judicial Restraint: Resolving The Constitutional Tension Between First Amendment Protection Of Political Speech And The Compelling Interest In Preserving Judicial Integrity, Ferris K. Nesheiwat

Ferris K Nesheiwat

No abstract provided.

Beyond Romer And Lawrence: The Right To Privacy Comes Out Of The Closet, Nancy C. Marcus

Nancy C Marcus

This article examines significant developments in the Supreme Court's privacy rights jurisprudence through the Rehnquist era with a look ahead toward the future of privacy and liberty protections under a new Court. The article explores several problems faced by privacy rights proponents, ranging from opposition to unenumerated constitutional rights generally to more recent tradition-based challenges to privacy protections. Tracing the historic roots of privacy rights, the article reveals the original intent of the Constitution's drafters to establish an evolving constitution with inalienable unenumerated individual rights, including a right to privacy which encompasses an affirmative liberty interest in autonomy. The article …

The Freedom Of Intimate Association In The Twenty First Century, Nancy C. Marcus

Nancy C Marcus

This article contends that recent developments in the Supreme Court's jurisprudence have created a historic opportunity for the Court to revisit and clarify its freedom of intimate association doctrine. The article traces the history of the freedom of intimate association, explaining how the Supreme Court in Roberts v. United States Jaycees, the first decision explicitly articulating a right to intimate association, failed to describe the parameters and contours of that right with enough precision to sufficiently guide later decisions. The article describe the resulting split among the circuits in their efforts to implement Roberts' intimate association guidelines, with some circuits …

La Reforma Política Pendiente, Jose Luis Sardon

Jose Luis Sardon

El presente artículo identifica las claves institucionales que explican las repetidas frustraciones políticas del Perú. Argumenta que existen problemas de diseño tanto en el sistema de gobierno como en el sistema de representación. El Perú tiene un sistema de gobierno seudopresidencial, en el cual predomina un Congreso fragmentado e irresponsable, debido a que es elegido a través de un sistema de representación proporcional. Para tener bases políticas propicias para el desarrollo de los mercados, se requiere una reforma de tales instituciones políticas.

Tradition & The Abolition Of Capital Punishment For Juvenile Crime, Harry F. Tepker Jr.

Harry F. Tepker Jr.

No abstract provided.

Violência Doméstica, Rafaela Loureiro Pinheiro Furlan, Juliana Mattar, Pedro Fida

Rafaela Loureiro Pinheiro Furlan

No abstract provided.

Aspectos Gerais Sobre As Restrições Aos Direitos Fundamentais, Jane Reis Gonçalves Pereira

Jane Reis Gonçalves Pereira

No abstract provided.

The Abuse Of Rights And The Rule Of Law, Gianluigi Palombella

Gianluigi Palombella

This article deals with the abuse that can be committed in the name of rights and of the rule of law, not against them. It explains the general characteristics of the concept of abuse from a legal point of view, on the part of the holder of a public power or of a right. Moreover, it addresses the way to identify the abuse itself by the means of legal arguments, and principles. Finally, it shows how resorting to the problem of abuse of power has been used as a tool for recognizing the habeas corpus to detainees in Guantanamo by …

La Democracia Deliberativa En Las Sociedades Semiperiféricas. Una Apología, Leonardo García Jaramillo

Leonardo García Jaramillo

No abstract provided.

Relative Access To Corrective Speech: A New Test For Requiring Actual Malice, Aaron K. Perzanowski

Aaron K. Perzanowski

This Article reexamines the First Amendment protections provided by the public figure doctrine. It suggests that the doctrine is rooted in a set of out-dated assumptions regarding the media landscape and, as a result, has failed to adapt in a manner that accounts for our changing communications environment. The public figure doctrine, which imposes the more rigorous actual malice standard of fault on defamation plaintiffs who enjoy greater access to mass media, was constructed in an era defined by one-to-many communications media. Newspapers, broadcasters, and traditional publishers exhausted the Court's understanding of the means of communicating with mass audiences. As …

The Policy-Making Process Of Supreme People Court: Power Strategy And Information Selection（最高法院公共政策的运作：权力策略与信息选择）, Meng Hou

Hou Meng

No abstract provided.

ფედერალიზმი და ფედერალური კონსტრუქციები, Giorgi Alasania

Giorgi Alasania

No abstract provided.

Justice Michael A. Musmanno And Obscenity (1956-1967), Joel Fishman

Joel Fishman

Justice Michael A. Musmanno was an outspoken, highly critical opponent to obscenity as decided by the United States and Pennsylvania Supreme Courts in the late 1950s and 1960s.

Cadena Perpetua Y Constitucion, Edgar Carpio Marcos

Edgar Carpio Marcos

No abstract provided.

On Boy Scouts And Anti-Discrimination Law: The Associational Rights Of Quasi-Religious Organizations, Erez Reuveni

Erez Reuveni

This paper proposes a tripartite legal approach to analyzing the rights of private, expressive associations. Current law views private associations through a binary lens - either an organization is "religious," or it is "secular." But this dichotomy fails to account for organizations whose animating expressive purpose is both religious and secular. Using the Boy Scouts of America as a case study, this paper develops a third category of private associations, quasi-religious groups, and articulates why the category is necessary and how quasi-religious groups would fit within existing First Amendment jurisprudence. First, the article reviews numerous cases involving the Boy Scouts …

The Catholic Second Amendment, David B. Kopel

David B Kopel

At the beginning of the second millennium, there was no separation of church and state, and kings ruled the church. Tyrannicide was considered sinful. By the end of the thirteenth century, however, everything had changed. The Little Renaissance that began in the eleventh century led to a revolution in political and moral philosophy, so that using force to overthrow a tyrannical government became a positive moral duty. The intellectual revolution was an essential step in the evolution of Western political philosophy that eventually led to the American Revolution.

The Gold Standard Of Gun Control - Book Review Of Joyce Malcolm, Guns And Violence: The English Experience, David B. Kopel, Joanne D. Eisen, Paul Gallant

David B Kopel

Guns and Violence tells a remarkable story of a society's self-destruction, of how a government in a few decades managed to reverse six hundred years of social progress in violence reduction. The book is also a testament to the amazing self-confidence of British governments; Labour and Conservative alike have proceeded with an extreme anti-self-defense agenda, although the agenda has never had much supporting evidence beyond the government's own platitudes.

Meeting The Information Needs Of Constitutionalist Patrons: A Guide For Reference Librarians, Vicenc Feliu

Vicenç Feliú

This paper illustrates the challenges that a reference law librarian encounters when facing the information needs of Constitutionalist patrons. These patrons are defined as members of a diverse community of groups that challenge the validity of the mainstream legal system.

The Metamorphosis Of Aboriginal Title, Brian Slattery

Brian Slattery

Aboriginal title has undergone a significant transformation from the colonial era to the present day. In colonial times, aboriginal title was governed by Principles of Recognition based on ancient relations between the Crown and Indigenous American peoples. With the passage of time, this historical right has evolved into a generative right, governed by Principles of Reconciliation. As a generative right, aboriginal title exists in a dynamic but latent form, which is capable of partial articulation by the courts but whose full implementation requires agreement between the Indigenous party and the Crown. The courts have the power to recognize the core …

Act Up/Anita Bryant/Drugs, Religion, And Law/Lambda Legal Defense And Education Fund/Right To Reply And Right Of The Press/Sincerity Of Religious Belief, James M. Donovan

James M. Donovan

Six entries in the Encyclopedia of American Civil Liberties (Paul Finkelman, ed.).

Wrestling With God: The Courts' Tortuous Treatment Of Religion, Patrick Garry

Patrick M. Garry

The relationship between church and state is both controversial and unsettled. For decades, the courts have vacillated dramatically in their rulings on when a particular governmental accommodation rises to the level of an impermissible state establishment of religion. Without a comprehensive theory of the First Amendment establishment clause, religion cases have devolved into a jurisprudence of minutiae. Seemingly insignificant occurrences, such as a student reading a religious story or a teacher wearing a cross on a necklace, have led to years of litigation. And because of the constant threat of judicial intrusion, a pervasive social anxiety exists about the presence …

La Justicia Restorativa: Un Modela De Penas Alternativas, Erik Luna

Erik Luna

No abstract provided.

Continuing The March Toward Reasonableness: Last Term's Fourth Amendment Decisions, Lawrence Rosenthal

Lawrence Rosenthal

No abstract provided.

John Paul Stevens, Joseph Thai

Joseph T Thai

No abstract provided.

Lodge, Henry Cabot, Christopher Hoebeke

Christopher H Hoebeke

No abstract provided.