Law Commons^™

Freedom From Incarceration: Why Is This Right Different From All Other Rights?, Sherry F. Colb

Sherry Colb

American constitutional jurisprudence has long accepted the notion that the exercise of certain rights can only be restricted by the government if the restriction satisfies strict scrutiny. The Supreme Court has identified such rights as fundamental often by relying on an expansive interpretation of the word "liberty" in the due process clause of the fourteenth amendment. In this Article, Professor Colb argues that the Supreme Court has failed to recognize the right to physical liberty itself as a fundamental right. She demonstrates that at present conduct that is not itself constitutionally protected may serve as the basis for imprisonment even …

What About The Victims? Domestic Violence, Hearsay, And The Confrontation Clause In The Aftermath Of Davis V. Washington, Stacey Gauthier

University of Massachusetts Law Review

This article analyzes the Sixth Amendment right to confrontation, admission of hearsay statements, and the effect of the Davis decision on the prosecution of domestic violence cases. Part II discusses the history of the Confrontation Clause. Part III discusses hearsay prior to Crawford. Parts IV, V, and VI discuss the landmark cases Crawford v. Washington, Commonwealth v. Gonsalves, and Davis v. Washington, respectively, with regard to whether statements made to police are admissible when the declarant is not available to testify at trial. The reasons why the Supreme Court’s extension of the Confrontation Clause is unwarranted are contained …

Supermax’S Kryptonite? Wilkinson V. Austin: The Due Process Challenge To Ohio’S Super-Maximum Security Prison, Adam Miller

University of Massachusetts Law Review

This note discusses the Supreme Court’s holding in Wilkinson that OSP’s system for inmate placement in its Supermax facility does not violate the Equal Protection Clause. Part II will summarize OSP’s purpose and condition, and will focus on Ohio’s New Policy regarding inmate placement. Part III will examine Supreme Court precedent and the Court’s conclusions of law in determining whether inmates have a protected liberty interest in avoiding assignment to OSP and the due process implications of the inmate selection process to OSP. Part IV will question the Supreme Court’s disregard of the adverse mental effects in inmates subjected to …

In Impartiality We Trust: A Commentary On Government Aid And Involvement With Religion, Thomas J. Cleary

University of Massachusetts Law Review

Ultimately, because true neutrality is not possible, nearly all government interaction with religion is to some degree friendly or hostile. One could argue, therefore, that government interaction with religion is inherently friendly or hostile in nature. As a consequence, establishing neutrality as the ideal misses the mark and has produced a swinging pendulum in the Supreme Court’s jurisprudence. At one end of its arc the pendulum produces hostility towards religion and at the other end of the arc it produces friendliness towards religion. This is reflected in case law and in both early and modern government practices. Ultimately, the pendulum …

Liberty Vs. Equality: In Defense Of Privileged White Males, Nancy E. Dowd

Nancy Dowd

In this book review, Professor Dowd reviews Forbidden Grounds: The Case Against Employment Discrimination Laws, by Richard A. Epstein (1992). First, Professor Dowd sets forth the thesis and arguments of Epstein’s book and explores her general criticisms in more detail. Next, she explores Epstein’s core argument pitting liberty against equality from two perspectives: that of the privileged white male and that of minorities and women. Finally, Professor Dowd argues that Epstein’s position cannot be viewed as an argument that most minorities or women would make, as it fails to take account of their stories.

Fear Of An Undeterrable Other, Fredrick E. Vars

Louisiana Law Review

No abstract provided.

Liberty, James E. Fleming, Linda C. Mcclain

Faculty Scholarship

"To secure the blessings of liberty," the Preamble to the US Constitution proclaims, "We the People . . . ordain and establish this Constitution." The Constitution is said to secure liberty through three principal strategies: the design of the Constitution as a whole; structural arrangements, most notably separation of powers andfederalism; and protection of rights. This chapter focuses on this third strategy of protecting liberty, in particular, through the Fifth and Fourteenth Amendments. We first examine the several approaches taken to the "Incorporation" of certain basic liberties "enumerated" in the Bill of Rights to apply to the state governments. We …

The Southern Tree Of Liberty: The Democratic Movement In New South Wales Before 1856, Terence Irving

Terry Irving

Who would imagine that democracy in NSW was won through fierce political battles and street rallies? The Southern Tree of Liberty sheds light on this turbulent and violent period in Australian history. For twenty years, the advocates of democracy mobilised the working class and fought hard to bring popular rule to the colony. The elites, on the other hand, used their legislative powers to halt this march towards liberty, most notably in the Constitution of 1853.

The New Racial Justice: Moving Beyond The Equal Protection Clause To Achieve Equal Protection, Emily Chiang

Florida State University Law Review

Since handing down Washington v. Davis and Arlington Heights v. Metropolitan Housing Development, the United States Supreme Court has significantly curtailed the ability of plaintiffs to bring disparate impact claims under the Equal Protection Clause. Many academics continue to talk about the standards governing intent and disparate impact. Some recent scholarship recognizes that reformers on the ground have shifted away from equality-based claims altogether. This Article contends that civil rights advocates replaced the old equal protection framework some time ago and that they did so deliberately and with great success. It expands upon and refines the strategy shift some …

Paternalism, Public Health, And Behavioral Economics: A Problematic Combination, Wendy K. Mariner

Faculty Scholarship

Some critiques of public health regulations assume that measures directed at industry should be considered paternalistic whenever they limit any consumer choices. Given the presumption against paternalistic measures, this conception of paternalism puts government proposals to regulate industry to the same stringent proof as clearly paternalist proposals to directly regulate individuals for their own benefit. The result is to discourage regulating industry in ways that protect the public from harm and instead to encourage regulating individuals for their own good -- quite the opposite of what one would expect from a rejection of paternalism. Arguments favoring "soft paternalism" to justify …

Supreme Court, Sullivan County, Holman V. Goord, Eric Pack

Touro Law Review

No abstract provided.

Military Commissions In America? Domestic Liberty Implications Of The Military Commissions Act Of 2006, Sean Riordan

Touro Law Review

No abstract provided.

"To Corral And Control The Ghetto": Stop, Frisk, And The Geography Of Freedom, Anders Walker

University of Richmond Law Review

While criminal law scholar Michelle Alexander has shown that stop and frisks often serve as the gateway into the criminal justice system for young men of color, she occludes the complex forces that led to their rise." This article seeks to identify those forces, relating the rise of stop and frisk rules to liberal politics, Cold War concerns, and spatial dynamics. To illustrate, this article will proceed in three parts. Part I will demonstrate how Mapp v. Ohio coincided with judicial frustration at police intrusions into private, intimate space-including private thought-precisely at a time when the United States sought to …

In Defense Of Liberty, Bobby Lee Cook

Tennessee Journal of Law and Policy

No abstract provided.

Institutional Autonomy And Constitutional Structure, Randy J. Kozel

Michigan Law Review

This Review makes two claims. The first is that Paul Horwitz’s excellent book, First Amendment Institutions, depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to mention its title) that the book’s implications are limited to the First Amendment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating expression. These are the terms on which the book’s argument — and, …

When Art Becomes Free: On Artistic In-Expression & Personal Convictions, Amir H. Khoury

Amir Khoury

In this paper I argue that just as there are moral rights in copyright law, which secure attribution and integrity, so too, there should be 'inverse' moral rights that can protect artists from being impelled or compelled to create in the first place. This research comes against the backdrop of one of the most contentious issues in the Western world today, that pertaining to same-sex marriage. But the discussion applies to all other fields where creativity finds itself in a battle over personal convictions. In my view, the inverse moral rights construct is the true reflection of the extent of …

Limiting Liberty To Prevent Obesity: Justifiability Of Strong Hard Paternalism In Public Health Regulation, Thaddeus Mason Pope

Faculty Scholarship

Because of the largely self-regarding nature of obesity, many current and proposed public health regulatory measures are paternalistic. That is, these measures interfere with a person’s liberty with the primary goal of improving that person’s own welfare.

Paternalistic public health measures may be effective in reducing obesity. They may even be the only sufficiently effective type of regulation. But many commentators argue that paternalistic public health measures are not politically viable enough to get enacted. After all, paternalism is repugnant in our individualistic culture. It is "wrong" for the government to limit our liberty for our own good.

In this …

Realities Of Religio-Legalism: Religious Courts And Women's Rights In Canada, The United Kingdom, And The United States, Anissa Helie, Marie Ashe

Publications and Research

Religio-legalism – the enforcement of religious law by specifically-religious courts that are tolerated or endorsed by civil government – has long operated against women’s interests in liberty and equality. In the 21st century, religious tribunals – Protestant, Catholic, Jewish, and Muslim – operate throughout the world. Almost all are male-dominated, patriarchal, and sex-discriminatory. Harms to women produced by Muslim or sharia courts have come into focus in recent years, but present realities of religio-legalism operating through Christian and Jewish – as well as Muslim – religious courts in Western nations have been under-examined.

This essay by Ashe and Helie documents …

Magna Carta’S Freedom For The English Church, Dwight G. Duncan

Faculty Publications

Even after, eight centuries, this provision of Magna Carta is one of the few that remains in effect. A statement of principle that the Church in England should be free from outside domination, it is an ancestor of our American belief in separation of Church and State and the guarantee of free exercise of religion contained in the First Amendment. In English history, people died for this principle, on various sides of the denominational divides. It was not always vindicated in practice. But, since at least the end of the thirteenth century, it has ever been on the statute books …

Justice Brennan And His Law Clerks, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Liberty, Equality, And Parentage In The Era Of Posthumous Conception, Jessica Knouse

Journal of Law and Health

This essay uses Astrue v. Capato as a platform to examine how liberty and equality interact within parent-child relationships. It observes that as prospective parents have experienced an increase in liberty due to new reproductive technologies the children they create have not necessarily experienced a commensurate increase in equality. The law’s myopic focus on parent-child relationships rather than provider-dependent relationships renders posthumously conceived children unequal along multiple dimensions. They may have not only one provider, but also only one parent. This essay argues that shifting the law’s focus away from identifying parents and towards identifying providers would mitigate the status …

Magna Carta In Supreme Court Jurisprudence, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

Editor's Note: This article is adapted from "Magna Carta in Supreme Court Jurisprudence," which appears as Chapter 5 in Magna Carta and the Rule of Law, Daniel Magraw et al., eds., published by the American Bar Association in 2014.