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Full-Text Articles in Law

Constitutional Litigation Under Section 1983 And The Bivens Doctrine In The October 2008 Term, Martin A. Schwartz Nov 2012

Constitutional Litigation Under Section 1983 And The Bivens Doctrine In The October 2008 Term, Martin A. Schwartz

Martin A. Schwartz

Section 1983 is the major enforcer of individual federal constitutional rights. It authorizes individuals to enforce their constitutional rights against state and local officials; for example,prison officers and police officers, and against municipalities. It is the most important civil statute in American law. To its credit, the United States Supreme Court understands the significance of § 1983. For the past three decades, in virtually every single Term of theCourt, it has decided a substantial number of cases dealing with different facets of § 1983 litigation. Last Term, there was anunusual number of § 1983 decisions rendered by the United States Supreme Court ...


Neither Persons Nor Associations: Why Recent Corporate Law Scholarship Undercuts Citizens United And The Constitutional Rights Of Corporations, David Ciepley Mar 2012

Neither Persons Nor Associations: Why Recent Corporate Law Scholarship Undercuts Citizens United And The Constitutional Rights Of Corporations, David Ciepley

David Ciepley

This Article challenges the Supreme Court’s practice of extending constitutional rights to corporations, using Citizens United (2010) as the focal point of its analysis. Originally, corporations were understood to receive all their rights in grant from government. This precluded their holding constitutional rights against government. In the late 19th century, two new theories arose that conflate corporations with natural persons and thus attribute to corporations some of the rights of natural persons: (1) the “association” theory, which treats the corporation as little more than an association of natural persons, and (2) the “real entity” theory, which treats the corporation ...


The Constitution, Citizenship, And Corporations – A Critical Look At Citizens United V. Fec, P M Vasudev Feb 2012

The Constitution, Citizenship, And Corporations – A Critical Look At Citizens United V. Fec, P M Vasudev

Palladam M Vasudev

“Associations of citizens” is a phrase the US Supreme Court used in Citizens United v. Federal Election Commission (2010) to refer to corporations. This notion was, apparently, an important element in shaping the Supreme Court’s judgment that permitted corporations to participate in the democratic process through campaign funding. Presumably, the “citizens” the court had in mind are the shareholders of corporations. Treating corporations as citizens in the collective, the Supreme Court upheld their political rights, and there is evidence of disquiet with the decision in Citizens United. My article examines the Supreme Court’s characterization of corporations as associations ...


The Education Duty, Scott R. Bauries Jan 2012

The Education Duty, Scott R. Bauries

Law Faculty Scholarly Articles

A constitution is an instrument of entrustment. By adopting a democratic constitution, a polity places in the hands of its elected representatives its trust that those representatives will act to pursue the ends of the polity, rather than their own ends, and that they will do so with an eye toward the effects of adopted policies. In effect, the polity entrusts lawmaking power to its legislature with the expectation that such power will be exercised with loyalty to the public and with due care for its interests. Simply put, legislatures are fiduciaries.

In this Article, I examine the nature of ...


American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries Jan 2012

American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries

Law Faculty Scholarly Articles

This paper addresses the South African Constitution's invitation to the Constitutional Court to 'consider foreign law' when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word 'basic'. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for ...


Medical Decision Making By And On Behalf Of Adolescents: Reconsidering First Principles, B. Jessie Hill Jan 2012

Medical Decision Making By And On Behalf Of Adolescents: Reconsidering First Principles, B. Jessie Hill

Journal of Health Care Law and Policy

No abstract provided.


A Comparative Analysis Of The Doctrinal Consequences Of Interpretive Disagreement For Implied Constitutional Rights, Zoë Robinson Jan 2012

A Comparative Analysis Of The Doctrinal Consequences Of Interpretive Disagreement For Implied Constitutional Rights, Zoë Robinson

Washington University Global Studies Law Review

This Article addresses a fundamental and unexamined issue in the debate over implied constitutional rights: the effect that interpretive disagreement has on the development of implied rights more generally. Taking a comparative approach, the Article examines the implied right to abortion in the United States and the implied right to the freedom of political communication in Australia. The Article argues that despite the acceptance of both rights over time, the doubts concerning the initial recognition of the rights as well as the interrelated problems of judicial self-consciousness regarding the vulnerability of the implied right in the face of continuing controversy ...


Do Boumediene Rights Expire?, Andrew Kent Jan 2012

Do Boumediene Rights Expire?, Andrew Kent

Faculty Scholarship

In 2008, Guantanamo detainees won a landmark victory in Boumediene v. Bush, which held that the Congress and the President could not prevent the detainees from accessing the courts to seek release via habeas corpus. The Court decided that persons claiming to be innocent civilians deserved a day in court, even though they were noncitizens held by the U.S. military as enemy combatants on foreign territory. The Court applied a fact-specific test that granted habeas rights to noncitizens outside the United States only when a balance of factors — including citizenship, enemy status, the nature of status review procedures, the ...


The Constitutional Right Not To Kill, Mark L. Rienzi Jan 2012

The Constitutional Right Not To Kill, Mark L. Rienzi

Scholarly Articles

Federal and state governments participate in and/or permit a variety of different types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings. The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since ...


Rights To Health Care In The United States: Inherently Unstable, David Orentlicher Jan 2012

Rights To Health Care In The United States: Inherently Unstable, David Orentlicher

Scholarly Works

No abstract provided.


Where Liberty Lies: Civil Society And Individual Rights After 9/11, David Cole Jan 2012

Where Liberty Lies: Civil Society And Individual Rights After 9/11, David Cole

Georgetown Law Faculty Publications and Other Works

Had someone told you, on September 11, 2001, that the United States would not be able to do whatever it wanted in response to the terrorist attacks of that day, you might well have questioned their sanity. The United States was the most powerful country in the world, and had the world’s sympathy in the immediate aftermath of the attacks. Who would stop it? Al Qaeda had few friends beyond the Taliban. As a historical matter, Congress and the courts had virtually always deferred to the executive in such times of crisis. And the American polity was unlikely to ...


The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole Jan 2012

The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole

Georgetown Law Faculty Publications and Other Works

In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian ...