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Articles 1 - 5 of 5
Full-Text Articles in Law
In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand
In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand
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In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to re-think the role of the Supreme Court and, consequently, the process by which we select Supreme Court justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation …
The Pros And Cons Of Politically Reversible 'Semisubstantive' Constitutional Rules, Dan T. Coenen
The Pros And Cons Of Politically Reversible 'Semisubstantive' Constitutional Rules, Dan T. Coenen
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Most observers of constitutional adjudication believe that it works in an all-or-nothing way. On this view, the substance of challenged rules is of decisive importance, so that political decision makers may resuscitate invalidated laws only by way of constitutional amendment. This conception of constitutional law is incomplete. In fact, courts often use so-called “semisubstantive” doctrines that focus on the processes that nonjudicial officials have used in adopting constitutionally problematic rules. When a court strikes down a rule by using a motive-centered or legislative-findings doctrine, for example, political decision makers may revive that very rule without need for a constitutional amendment. …
The Supreme Courts Municipal Bond Decision And The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen
The Supreme Courts Municipal Bond Decision And The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen
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Does it violate the dormant Commerce Clause for a state to exempt interest earned on its own bonds, but no others, from income taxation? In a recent decision, the Supreme Court answered this question in the negative. Six members of the Court found the case controlled by the state-self-promotion exception to the dormancy doctrine's antidiscrimination rule. Three of those Justices, however, went further by also invoking the longstanding market-participant exception to sustain the discriminatory state tax break. This Essay challenges that alternative line of analysis. According to the author, the plurality's effort to apply the market-participant principle: (1) invites a …
Gonzales, Casey And The Viability Rule, Randy Beck
Gonzales, Casey And The Viability Rule, Randy Beck
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Gonzales v. Carhart upheld a federal ban on intact D&E abortions. The dissenters in Gonzales accused the majority of ignoring the rule that a state may only prohibit abortion of a viable fetus, one capable of life outside the womb. The continuing discord over the viability rule highlights an issue that remains unsettled 34 years after Roe: Why may a state protect the life of a fetus after it reaches viability, but not before? Professor John Hart Ely long ago noted Roe's failure to justify the viability rule, observing that the Court's defense seems to mistake a definition for a …
Queer Lockdown: Coming To Terms With The Ongoing Criminalization Of Lgbtq Communities, Ann Cammett
Queer Lockdown: Coming To Terms With The Ongoing Criminalization Of Lgbtq Communities, Ann Cammett
Scholarly Works
The criminal justice system exacts a toll on some Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) communities. The experience of living in poverty and the concomitant exposure to a variety of governmental systems puts all poor, but especially LGBTQ low-income people of color, at risk of incarceration. What typically goes unexamined are the myriad ways that LGBTQ people are drawn into and experience the carceral system because of sexual identities and expression. This negative effect surfaces at every conceivable level: the marginalization and subsequent criminalization of queer youth; anti-gay bias in the judicial system; the rerouting of domestic violence cases …