Law Commons^™

Surprise Symphony: The Supreme Court’S Major Criminal Law Rulings Of The 2002 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

A Primer On Hobby Lobby: For-Pro T Corporate Entities’ Challenge To The Hhs Mandate, Free Exercise Rights, Rf ’S Scope, And The Nondelegation Doctrine, Danielle Weatherby, Terri R. Day, Leticia M. Diaz

Danielle Weatherby

Roper V. Simmons - Supreme Court's Reliance On International Law In Constitutional Decision-Making, Jessica Mishali

Touro Law Review

No abstract provided.

Courts Cap The "Trade": Regulation Of Competitive Markets When Courts Overturn State And Federal Cap-And-Trade Regulation, Steven Ferrey

West Virginia Law Review

No abstract provided.

Stuck Between A Lump Of Coal And A Hard Place: The Mine Safety And Health Administration's Struggle With Due Process And America's Coal Industry, Patrick R. Baker

West Virginia Law Review

No abstract provided.

Paradoxes Of Court Centered-Legal History: Some Values Of Historical Understanding For A Practical Legal Education, Edward A. Purcell Jr.

Journal of Legal Education

No abstract provided.

Diversity: The Red Herring Of Equal Protection, Sharon E. Rush

Sharon E. Rush

Couching the constitutional inquiry in cases like Bakke and VMI in the context of integration also puts in perspective the diversity justification. Affirmative action policies are constitutional because they integrate state programs. Integration on the basis of race and sex also diversifies state programs. In contrast, attempts to justify sex-segregation in state programs by arguing the policy promotes diversity is irrelevant to an equal protection analysis. Voluntarily created all-female schools should be constitutional because they promote the equal citizenship of women without damaging the equal citizenship stature of men. This is true for voluntarily race-segregated programs for minorities; as well. …

Interning The “Non-Alien” Other: The Illusory Protections Of Citizenship, Natsu Taylor Saito

Natsu Taylor Saito

Saito draws parallels between the internment of Japanese Americans during WWII and the current actions being taken by the US government as it seeks out terrorists in the post-9/11 world. The action of unequal prosecution of citizens based on race has roots that extend far back in American history, and the unfair internment of citizens in the 20th century should not be considered an aberration of public policy.

The Scope Of “High Crimes And Misdemeanors” After The Impeachment Of President Clinton, Neil Kinkopf

Neil J. Kinkopf

Kinkopf believes that the House of Representatives' decision to impeach Pres Clinton on the charge that he committed perjury before the grand jury, a charge that did not involve official conduct, was proper. Even though Pres Clinton's misconduct was not a proper basis for impeachment or conviction, his case demonstrates that if would be terribly unwise to understand official misconduct to be a necessary element of a high crime or misdemeanor.

Stop Draggin’ My Heart Around: The Supreme Court Is Harming People With Its Inscrutable Gay Marriage Actions, Sonja R. West, Dahlia Lithwick

Popular Media

The Supreme Court’s decision Monday (Oct. 5, 2014) to decline the appeals of decisions striking down same-sex marriage bans in five states was, to most court-watchers, a huge surprise. It was also a deeply strange move given the magnitude of the constitutional issue and the general confusion about what a non-decision actually means. While Monday’s denial of certiorari was not technically a decision on the merits, most supporters of same-sex marriage celebrated the move as part of the justices’ inexorable crawl toward marriage equality. And in Virginia, Oklahoma, Colorado, and other affected states, gay couples who have waited—in many cases …

Supreme Court Religious Freedom Case Should Give Us Pride, Alan E. Garfield

Alan E Garfield

No abstract provided.

Mining For Gold: The Constitutional Court Of South Africa's Experience With Comparative Constitutional Law, Ursula Bentele

Georgia Journal of International & Comparative Law

No abstract provided.

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

All Faculty Scholarship

In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution's Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights and civil liberties ‒ that any activity must be permitted if it is not imposed upon others without their consent, and if …

Beyond The Schoolhouse Gates: The Unprecedented Expansion Of School Surveillance Authority Under Cyberbulling Laws, Emily Suski

Faculty Publications

For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. This solution seems all to the good unless a close examination of the cyberbullying laws and their implications is made. This Article explores some of the problematic implications of the cyberbullying laws. More specifically, it focuses on how the cyberbullying laws allow schools unprecedented surveillance authority over students. This …

Exotic Dancing: Taxable Gyrations Or Exempt Art, John O. Hayward

John O. Hayward

Exotic dancers usually embroil themselves in censorship battles with local authorities. But recently they have drawn the attention of tax authorities who have tussled with the owners of so-called “gentlemen’s clubs” over whether the exotic dancing performed in their establishments are subject to taxation. This paper examines several recent cases where state authorities choose to tax exotic dancing while at the same time exempting what some jurists regard as comparable choreographic performances. In the opinion of these commentators, the tax authorities exhibited a bias against low-brow artistic expression, thus engaging in impermissible content discrimination. It advances the proposition that judges …

Constitution And Pollution: Federalism At Work, David R. Hodas

David R. Hodas

No abstract provided.

Are ‘We The People’ Meeting Our Responsibilities?, Alan E. Garfield

Alan E Garfield

No abstract provided.

Answering The Serious Constitutional Question: Ensuing Meaningful Review Of All Constitutional Claims, George Bach

West Virginia Law Review

No abstract provided.

The Conservative-Libertarian Turn In First Amendment Jurisprudence, Steven J. Heyman

West Virginia Law Review

No abstract provided.

The Prohibition Of Moonshine: A Consumer Protection Analysis Of Raw Milk In Interstate Commerce, Whitney R. Morgan

West Virginia Law Review

No abstract provided.

Failure Of Fault Under 1983: Municipal Liability For State Law Enforcement , Mark R. Brown

Cornell Law Review

No abstract provided.

Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen

James L. Kainen

No abstract provided.

The Founders’ Origination Clause (And Implications For The Affordable Care Act), Prof. Robert G. Natelson

Robert G. Natelson

This Article is the first comprehensive examination of the original legal force of the Constitution’s Origination Clause, drawing not merely on the records of the 1787-90 constitutional debates, but on founding-era British and American legislative practice and other sources. This Article defines the bills governed by the Origination Clause, the precise meaning of the House origination requirement, and the extent of the Senate’s amendment power. For illustrative purposes, the Article tests against its findings the currently-litigated claim that the financial penalty for failure to acquire individual health insurance under the Patient Protection and Affordable Care Act is invalid as a …

The Hercules Of Helena: Justice James C. Nelson And The Jurisprudence Of Principle, Anthony Johnstone

Montana Law Review

The Hercules of Helena: Justice James C. Nelson and the Jurisprudence of Principle

Public Law At The Cathedral: Enjoining The Government, Michael T. Morley

Scholarly Publications

Conventional wisdom provides that injunctive relief in public law cases is generally unnecessary, because a declaratory judgment and the threat of damages are enough to induce the government to comply with a court’s ruling (except, perhaps, in the institutional reform context). Consistent with this prevailing understanding, most scholars to apply Calabresi and Melamed’s Cathedral framework to public law have concluded that nearly all constitutional rights are protected by property rules, regardless of whether a rightholder actually is protected by an injunction, or instead merely has a substantial likelihood of obtaining one if she goes to court.

This Article challenges this …

The Commerce Power And Congressional Mandates, Dan T. Coenen

Scholarly Works

In National Federation of Independent Business v. Sebelius, a five-Justice majority concluded that the commerce power did not support enactment of the so-called “individual mandate,” which imposes a penalty on many persons who fail to buy health insurance. That ruling is sure to spark challenges to other federal laws on the theory that they likewise mandate individuals or entities to take certain actions. Federal laws founded on the commerce power, for example, require mine operators to provide workers with safety helmets and (at least as a practical matter) require mine workers to wear them. Some analysts will say that laws …

Book Review Of Simpler: The Future Of Government, By Cass Sunstein, Bernard W. Bell

Journal of Legal Education

No abstract provided.

The Constitutional Right To Bargain Collectively: The Ironies Of Labour History In The Supreme Court Of Canada, Eric Tucker

Eric M. Tucker

In June 2007 the Supreme Court of Canada held that the right to collective bargaining is a constitutionally protected under the Charter of Rights and Freedoms' guarantee of freedom of association. In so doing, they overruled a twenty-year old line of precedent that had rejected that very proposition. The court rested its current position of four grounds, one of which was that Canadian labour history supports the view that collective bargaining had become recognized as a fundamental right prior to the Charter. This article critically reviews the court's labour history and argues that it erroneously asserts that workers enjoyed a …

Quick Change Justice, Sonja R. West, Dahlia Lithwick

Popular Media

The architecture of the U.S. Supreme Court Building is rife with turtles. There are turtles holding up the lampposts in the courtyard and turtles engraved in the stone decor. You can buy turtle coffee mugs at the gift shop. The turtle is said to represent the slow and deliberate pace of justice. This is an institution, the turtle tells us, that moves slowly, deliberately, and removed from the knee-jerk pace of the political branches.

Yet moments before they adjourned for their summer recess, the justices proved they can act quite quickly and recklessly when it comes to violating the terms …

A Common Law Constitutionalism For The Right To Education, Scott R. Bauries

Law Faculty Scholarly Articles

This Article makes two claims, one descriptive and the other normative. The descriptive claim is that individual rights to education have not been realized under state constitutions because the currently dominant structure of education reform litigation prevents such realization. In state constitutional education clause claims, both pleadings and adjudication generally focus on the equality or adequacy of the system as a whole, rather than on any particular student's educational resources or attainment. The Article traces the roots of the currently dominant systemic approach, and finds these roots in federal institutional reform litigation. This systemic focus leads to a systemic, rather …