Law Commons^™

The Canon Has A History, Richard A. Primus

Reviews

Legal Canons, edited by J. M. Balkin and Sanford Levinson, is a collection of fourteen essays on subjects related to canonicity in law and legal education. Balkin and Levinson have two principal aims. One is to expand the category of things that can be canonical: not just texts, they say, but also arguments, problems, narrative frameworks, and examples invoked in conversation or teaching. In their view, what makes something canonical is its ability to reproduce itself in the minds of successive generations.' If generation after generation of legal academics argues about the countermajoritarian difficulty, then the countermajoritarian difficulty is a …

The Establishment Clause As A Structural Restraint: Validations And Ramifications, Carl H. Esbeck

Faculty Publications

The opening phrase of the First Amendment to the U.S. Constitution provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The free exercise clause functions as an individual right with its purpose being to forestall personal religious harm. Its underlying principle is that in religious matters a person ought to be free of coercion caused by the government and thereby not made to suffer for cause of conscience. The function of the establishment clause is altogether different, for its purpose is to restrain government from using its powers to act on matters …

Enforcing Affirmative State Constitutional Obligations And Sheff V. O'Neill, Justin R. Long

Law Faculty Research Publications

No abstract provided.

Reflections Upon Judicial Independence As We Approach The Bicentennial Of Marbury V. Madison: Safeguarding The Constitution's "Crown Jewel", Honorable Gerald E. Rosen, Kyle W. Harding

Fordham Urban Law Journal

This Article traces the history of judicial independence from the drafting of the Constitution and the Supreme Court's articulation of judicial review in Marbury v. Madison. It addresses the obstacles encountered during the ratification process and the reaction to the Marbury decision. The Article then summarizes the continued challenges to judicial independence, from President Roosevelt's "court-packing" plan to characterizations of judicial activism in Lochner v. New York. The Article concludes by warning that judges must remain vigilant against the impact of the highly partisan political process and the advent of powerful special interest groups.

Trying To Fit An Oval Shaped Island Into A Square Constitution: Arguments For Puerto Rican Statehood, Jose D. Roman

Fordham Urban Law Journal

This Comment focuses on the limits placed on Puerto Rico under the United States Constitution and concludes that Puerto Rico must become the 51st state to improve its status under the Constitution. It explores Puerto Rico's relationship with the United States and its unusual position under the Constitution. This Comment then examines the voting rights issues facing Puerto Ricans, including a First Circuit case which denied Puerto Ricans the right to vote in presidential elections. The Comment concludes that this case was correctly decided and the Supreme Court, in other decisions, has only recognized a limited right to vote under …

September 11, 2001: The Constitution During Crisis: A New Perspective, Lori Sachs

Fordham Urban Law Journal

This Comment examines how the United States should react to the threat of domestic terrorism while maintaining citizens' civil liberties in the wake of the events on September 11, 2001. The Comment first compares and contrasts three classic theories of democracy: constitutional democracy, representative democracy and deliberative democracy. It next describes how representative and constitutional democracy were applied during the Japanese internment during World War II. Part III compares the Japanese internment to the challenges after the September 11 attacks and analyzes the roles different branches should have in protecting civil liberties. Finally, the Comment recommends applying a theory of …

Child Witness Policy: Law Interfacing With Social Science, Louise E. Graham, Dorothy F. Marsil, Jean Montoya, David Ross

Law Faculty Scholarly Articles

The number of children testifying in court has posed serious practical and legal problems for the judicial system. One problem confronting the courts is how to protect children from experiencing the psychological trauma resulting from a face-to-face confrontation with a defendant who may have physically harmed the child or threatened future harm to the child. Another concern is that this trauma may impair children's memory performance and their willingness to disclose the truth. In response to these concerns, child witness innovations proliferated throughout the United States in the 1980s and 1990s. Among the innovations were: placing a screen between child …

Charities And The Constitution: Evaluating The Role Of Constitutional Principles In Determining The Scope Of Tax Law's Public Policy Limitation For Charities, David A. Brennen

Law Faculty Scholarly Articles

This Article expands the discussion of whether tax-exempt charities, for constitutional law purposes, should be treated as government actors, as private actors or as something in between. While government actors are subject to constitutional law restrictions concerning discrimination and free speech, private non-government actors are not generally subject to these same restrictions. Although tax-exempt charities are often thought of as sovereigns and, thus, government-like, the fact remains that charities are private entities created to serve public purposes. As private entities, charities - like all other private entities - are not necessarily bound by constitutional law principles. Still, the many “public” …

Stories Of Fourth Amendment Disrespect: From Elian To The Internment, Andrew E. Taslitz

Fordham Law Review

No abstract provided.

Clarence Thomas: The First Ten Years Looking For Consistency, Mark C. Niles

Faculty Publications

(Excerpt)

Ten years ago, when George Herbert Walker Bush nominated Clarence Thomas to replace Thurgood Marshall as an Associate Justice of the United States Supreme Court, I, like many Americans and most lawyers, waited with interest to hear information about this soon-to-be-powerful man. I had a vague recollection from my recent law school days of hearing about a young, conservative, black federal judge who might be inline for a nomination to the Court. This vague reference was all that I had heard of Clarence Thomas prior to the Fall of 1991.

When stories about Thomas began to appear in the …

Is There A Little (Or Not So Little) Constitutional Crisis Developing In Indian Law?, Frank Pommersheim

Faculty Publications

No abstract provided.

Lessons From The World Conference Against Racism, Peggy Maisel

Faculty Scholarship

It is difficult to get people to remember, let alone focus on the accomplishments and ongoing challenges that emerged during the United Nations sponsored World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance (the WCAR) held just over a year ago in Durban, South Africa. The reason is simple: that conference ended on September 8, 2001, and what we remember about that period is now permanently obscured by what happened just three short days later. But the events of September 11 make it more imperative than ever that we address the evils of racism, racial discrimination, and xenophobia. It …

The Constitutional Validity Of The Religious Land Use And Institutionalized Persons Act Of 2000: Will Rluipa's Strict Scrutiny Survive The Supreme Court's Strict Scrutiny?, Caroline R. Adams

Fordham Law Review

No abstract provided.

Bankruptcy And Federalism, Thomas E. Plank

Fordham Law Review

No abstract provided.

Pick A Number, Any Number: State Representation In Congress After The 2000 Census, Suzanna Sherry, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In this essay, Professors Edelman and Sherry explain the mathematics behind the allocation of congressional seats to each state, and survey the different methods of allocation that Congress has used over the years. Using 2000 census figures, they calculate each state's allocation under five different methods, and discuss the advantages and disadvantages of the various methods.

One View To Add To The Many, Bill Piatt

Faculty Articles

The United States offers its citizens the opportunity to participate in the legal and political system through which it governs. The Constitution ensures that its citizens may engage, participate, and represent the body politics in government and the application of its laws. The recent attacks on America and the failure of the immigration system in monitoring its applicants has resulted in more restrictive immigration laws and policy.

The country’s legal education system must continue to improve its efforts in diversifying the nation’s law schools. More minorities should be represented as students, professors, and deans. Accomplishing a more diversified legal education …

Introduction: Keeping Secrets, Dale Carpenter

Faculty Journal Articles and Book Chapters

It has become a commonplace to say that September 11 changed everything. What the writer or speaker usually means by this is that Americans have re-calibrated their views on the relative importance of individual civil liberties and the common good. Like many other national traumas, September 11 may in historical hindsight be seen as a jolt that perhaps necessarily-but at any rate, temporarily-induced a retrenchment on rights.

But if the September-11-changed-everything idea overstates the significance of the event, it also understates the extent to which, at least in the area of privacy, some re-calibration of the balance between liberty and …

The Constitution And The New Deal, Richard D. Friedman

Reviews

The Supreme Court of the New Deal era continues to captivate American lawyers and historians. Constitutional jurisprudence changed rapidly during the period. Moreover, some of the most significant changes appeared - whatever the reality - to result from pressure imposed in 1937 by President Franklin Roosevelt's plan to pack the Court with Justices amenable to his programme. The structure of constitutional law that emerged within a few years of Roosevelt's death remains intact in significant respects today.

Tradition, Principle And Self-Sovereignty: Competing Conceptions Of Liberty In The United States Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

The “liberty” protected by the United States Constitution has been variously interpreted as the “liberty” of thinking persons to speak, worship and associate with others, unimpeded by onerous state law; the liberty of consumers and producers to make individual market choices, including the choice to sell one’s labour at any price one sees fit, free of redistributive or paternalistic legislation that might restrict it; and the liberty of all of us in the domestic sphere to make choices regarding reproductive and family life, free of state law that might restrict it on grounds relating to public morals. Although the United …

Redeeming The Welshed Guarantee: A Scheme For Achieving Justiciability, Ethan J. Leib

Faculty Scholarship

In this article, I suggest that Congress re-pass its progressive legislation under the jurisdictional basis of its Guarantee Clause power. While arguments for justiciability continue to be made, a pragmatic way to achieve it has not been spelled out. Part II will lay out versions of republicanism I hope to see discussed in the context of the Guarantee Clause. Part III will explore republicanism's excessive attention on the courts, recommending the aforementioned approach of Jeremy Waldron. Part IV will briefly suggest how some of the legislation recently curtailed by the Supreme Court might be justified under a theory of legislative, …

Of Orphans And Vouchers: Nevada's "Little Blaine Amendment" And The Future Of Religious Participation In Public Programs, Jay S. Bybee

Scholarly Works

In December 1875, President Ulysses S. Grant delivered his last annual message to Congress. He warned of “the dangers threatening us” and the “importance that all [men] should be possessed of education and intelligence,” lest “ignorant men . . . sink into acquiescence to the will of intelligence, whether directed by the demagogue or by priestcraft.” He recommended as “the primary step” a constitutional amendment “making it the duty of each of the several States to establish and forever maintain free public schools adequate to the education of all of the children” and “prohibiting the granting of any school funds, …

Paradise Lost: Good News Club, Charitable Choice, And The State Of Religious Freedom, Ian C. Bartrum

Scholarly Works

The United States Constitution's two religion clauses prohibit Congress from passing laws that establish religion or restrict its free exercise. This Note argues that James Madison and Thomas Jefferson worked to include this language in the Constitution because of their belief that citizens' religious duties were more fundamental than their civic duties. It argues that they intended the Constitution's religion clauses to form a simple dialectic: the government may not force citizens to renounce their religious duties by compelling them to support another faith, nor may it pass laws that act coercively to restrict their religious beliefs and practices. This …

Roundtable Panel I: Database Protection, Robert Eisenbach, Lisa Ferri, Robert Gibbons, Charles Sims

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Sexual Abuse Against Women In Prison, Brenda V. Smith

Project on Addressing Prison Rape - Articles

One of the by-products of the influx of women into correctional settings has been the emergence of sexual misconduct against women in prison as a major issue for corrections officials and attorneys who represent women. This article advocates for laws criminalizing sexual abuse of women inmates, as well as training to prevent such abuse.

Campbell V. Georgia: Mandatory Minimum Sentencing Survives Separation Of Power Attacks, Remaining A Viable Option For The Legislature In Its War On Crime, Brian D. Boreman

Georgia State University Law Review

No abstract provided.

Employment Discrimination By Religious Institutions: Limiting The Sanctuary Of The Constitutional Ministerial Exception To Religion-Based Employment Decisions, Laura L. Coon

Vanderbilt Law Review

A religious organization enters a contract with a builder to construct a new facility and breaches the contract; a student at a private, religiously-affiliated school slips on a patch of ice and is seriously injured because of the school maintenance crew's negligence. The builder and the student are aggrieved by the actions of the respective religious institutions. Consequently, they seek to re- solve their disputes through the judicial system, as would any other individual with a potential legal claim. Although the adjudicative process would involve church and state, the First Amendment Religion Clauses would not likely be implicated, because the …

Beyond Campaign Finance: The First Amendment Implications Of Nixon V. Shrink Missouri Goverment Pac, Christina E. Wells

Missouri Law Review

Part I of this Essay discusses legal background, focusing first on the Court's decision in Buckley and then on the Shrink litigation. Part II itemizes Shrink's flaws, ultimately concludng that those flaws cannot be attributed solely to Buckley. Finally, Part III examines the Court's standards of scrutiny in First Amendment cases and argues that Shrink results at least in part from flaws found in those standards.

What Is A Community? Group Rights And The Constitution: The Special Case Of African Americans, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Thick And Thin: Interdisciplinary Conversations On Populism, Law, Political Science, And Constitutional Change, Mark A. Graber

Faculty Scholarship

No abstract provided.

Virtue And The Constitution Of The United States, John Finnis

Fordham Law Review

No abstract provided.