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Full-Text Articles in Law
Constitutional Climate Change In The Courts, James R. May
Constitutional Climate Change In The Courts, James R. May
James R. May
We have entered an interesting constitutional era, one in which a rising sea level will help to buoy a rising tide of climate litigation, the leading edge of which lies constitutional jurisprudence as applied to the political question doctrine, preemption, dormant commerce and compact clauses and standing. In 2007 most of it involves either state action (e.g., to regulate greenhouse gas emissions from new motor vehicles or require climate friendly energy production), or state causes of action (e.g., public or private nuisance). In 2007, the trend was toward dismissing climate-tort cases as presenting political questions. Notably, in Mass. v. EPA, …
No Scrutiny Whatsoever: Deconstitutionalization Of Poverty Law, Dual Rules Of Law, And Dialogic Default, Julie Nice
No Scrutiny Whatsoever: Deconstitutionalization Of Poverty Law, Dual Rules Of Law, And Dialogic Default, Julie Nice
Julie A. Nice
This article traces how the Supreme Court has deconstitutionalized Poverty Law by four departures from normal constitutional doctrine: first, by categorical immunization of “social or economic legislation”; second, by circumvention of normal suspect class or classification analysis; third, by application of rationality review in a reflexive manner to uphold governmental regulation; and fourth, by ratcheting down from the heightened scrutiny normally used for protection of established fundamental rights. In particular, she explores the historical emergence of judicial deference for “social or economic legislation,” and finds that Justice Douglas, who coined the phrase, specifically rejected deference for laws that disadvantaged poor …
What's Wrong With Judicial Supremacy? What's Right About Judicial Review?, Robert Lipkin
What's Wrong With Judicial Supremacy? What's Right About Judicial Review?, Robert Lipkin
Robert Justin Lipkin
Skepticism concerning the legitimacy of judicial review typically occurs without distinguishing between judicial review and judicial supremacy. The former gives the Court a say in evaluating the constitutionality of legislation and other government conduct. The latter gives the Court the final say over these matters. This Article defends the Court's role in judicial review but rejects the practice of judicial supremacy. The Article first critically examines some of the more important attempts to justify judicial supremacy and finds them wanting. It then explains why judicial review, as the practice of applying American political philosophical concepts such as federalism, the separation …
Finding Shared Values In A Diverse Society: Lessons From The Intelligent Design Controversy, Alan E. Garfield
Finding Shared Values In A Diverse Society: Lessons From The Intelligent Design Controversy, Alan E. Garfield
Alan E Garfield
One of the nation’s more profound and volatile ideological divides is between fundamentalist religious adherents and secular members of society. This divide has been particularly salient in recent years as issues challenging traditional religious morality – abortion, gay marriage, and stem-cell research – have been exploited as wedge issues for political gain. In this Article, I join the efforts of other scholars to find a way to bridge the gap between religious and secular Americans. By focusing on one particularly contentious front in the religious-secular wars – the teaching of intelligent design – I am able to identify a value …
Climate Change, Constitutional Consignment, And The Political Question Doctrine, James R. May
Climate Change, Constitutional Consignment, And The Political Question Doctrine, James R. May
James R. May
Recently states and individuals have turned to federal common law causes of action to provide equitable and legal relief for climate change. Thus far, every federal court to consider these claims has held that they raise non-justiciable political questions consigned to the coordinate branches. These courts reason that federal courts lack jurisdiction over climate cases because climate change is textually committed elsewhere, there are no judicial standards to apply, and the elected branches have yet to render an initial policy determination about the subject. This article concludes that these courts either misapply or misapprehend the doctrine. It concedes that federal …
Constitutional Law: 2008 Annual Report, James R. May
Constitutional Law: 2008 Annual Report, James R. May
James R. May
No abstract provided.