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Articles 1 - 14 of 14
Full-Text Articles in Law
The Tenuous Case For Conscience, Steven D. Smith
The Tenuous Case For Conscience, Steven D. Smith
Steven D. Smith
If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …
Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller
Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller
Elisabeth Keller
Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …
A Comment On "Legisprudence", Vlad F. Perju
Cosmopolitanism And Constitutional Self-Government, Vlad F. Perju
Cosmopolitanism And Constitutional Self-Government, Vlad F. Perju
Vlad Perju
This paper, which was selected for presentation at the 2010 Yale/Stanford Junior Faculty Forum, articulates the theoretical steps by which self-government in a free community of equals leads constitutional analysis outside the boundaries of that political community. Openness to the experiences in self-government of other peoples is commonly assumed to undermine political legitimacy by loosing citizens’ control over their political fate. But is it possible that such openness might in fact render that control more effective? Could it actually enhance political and constitutional legitimacy? This paper articulates and defends the following claims: 1) The legitimacy of a political order is …
Does Legalzoom Have First Amendment Rights? Some Thoughts About Freedom Of Speech And The Unauthorized Practice Of Law, Catherine J. Lanctot
Does Legalzoom Have First Amendment Rights? Some Thoughts About Freedom Of Speech And The Unauthorized Practice Of Law, Catherine J. Lanctot
Working Paper Series
At a time of economic dislocation in the legal profession, it is likely that bar regulators will turn their attention to pursuing lay entities that appear to be engaged in the unauthorized practice of law. One prominent target of these efforts is LegalZoom, an online document preparer that has come under increasing pressure from the organized bar for its marketing and sale of basic legal documents. As regulatory pressure against LegalZoom and similar companies continues to mount, it is worth considering whether there may be unanticipated consequences from pursuing these unauthorized practice claims. In several well-known instances, lay people have …
Taking War Seriously: A Model For Constitutional Constraints On The Use Of Force, In Compliance With International Law, Craig Martin
Taking War Seriously: A Model For Constitutional Constraints On The Use Of Force, In Compliance With International Law, Craig Martin
Craig Martin
This article develops an argument for increased constitutional control over the decision to use armed force or engage in armed conflict, as a means of reducing the incidence of illegitimate armed conflict. In particular, the Model would involve three elements: a process-based constitutional incorporation of the principles of international law relating to the use of force (the jus ad bellum regime); a constitutional requirement that the legislature approve any use of force rising above a de minimus level; and an explicit provision for limited judicial review of the decision-making process. The Model is not designed with any one country in …
Cognitive Dissonance In A Recession: Minnesota Gop Attacks Marriage Equality In Land Of "Gayest City In America", Aaron J. Shuler
Cognitive Dissonance In A Recession: Minnesota Gop Attacks Marriage Equality In Land Of "Gayest City In America", Aaron J. Shuler
Aaron J Shuler
Despite a tradition of progressive thinking on civil rights and recent specific gains for gays in Minnesota, the State's Republican party is trying to place an anti-marriage equality amendment on the 2012 ballot.
Appellate Jurisdiction Of The Supreme Court Of India, Mubashshir Sarshar
Appellate Jurisdiction Of The Supreme Court Of India, Mubashshir Sarshar
Mubashshir Sarshar
No abstract provided.
Traditional Culture V. Westernization: On The Road Toward The Rule Of Law In China, Haiting Zhang
Traditional Culture V. Westernization: On The Road Toward The Rule Of Law In China, Haiting Zhang
haiting zhang
Meaningful studies on China cannot ignore traditional Chinese culture and its influence in the country. A study of the rule of law of China is no exception. Generally speaking, China is not governed primarily by the rule of law. China has traditionally been an agrarian state—a characteristic that has historically fostered a strong family system. China’s agrarian nature also shaped traditional characteristics of Chinese culture in which rule of law is largely non-existent. Historically, the rule of man, a traditional Chinese value, has served as one of the major obstacles to China achieving legal modernization. Substantial legal westernization is an …
Collective Choice, Justin Schwartz
Collective Choice, Justin Schwartz
Justin Schwartz
This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility …
Education As A Counterterrorism Tool And The Curious Case Of The Texas School Book Resolution, Diane Webber
Education As A Counterterrorism Tool And The Curious Case Of The Texas School Book Resolution, Diane Webber
Diane Webber
As a case study, this paper reviews a resolution passed by the Texas State Board of Education on September 24, 2010. The resolution rejects certain Social Studies texts that contain what the Board determined were pro-Islamic/anti-Christian distortions…The resolution is itself doing what it complains about – it is showing “chronic partiality to one of the world’s great religions and animus against another.”…At a time when “reciprocal negative perceptions between the Western and Muslim worlds continue to escalate”, it is essential to acknowledge the important role of education to promote tolerance… The knowledge gained from religious tolerance education can then be …
On The Contemporary Meaning Of Korematsu: 'Liberty Lies In The Hearts Of Men And Women', David A. Harris
On The Contemporary Meaning Of Korematsu: 'Liberty Lies In The Hearts Of Men And Women', David A. Harris
Articles
In just a few years, seven decades will have passed since the U.S. Supreme Court’s decision in Korematsu v. U.S., one of the most reviled of all of the Court’s cases. Despised or not, however, similarities between the World War II era and our own have people looking at Korematsu in a new light. When the Court decided Korematsu in 1944, we were at war with the Japanese empire, and with this came considerable suspicion of anyone who shared the ethnicity of our foreign enemies. Since 2001, we have faced another external threat – from the al Queda terrorists – …
Acta's Constitutional Problems: The Treaty Is Not A Treaty, Sean Flynn
Acta's Constitutional Problems: The Treaty Is Not A Treaty, Sean Flynn
Articles in Law Reviews & Other Academic Journals
On the eve of the United States’ entry into the Anti-Counterfeiting Trade Agreement (“ACTA”), there is considerable confusion as to just what legal effect the agreement will have. In written answers to Senator Ron Wyden, the United States Trade Representative (“USTR”) went to lengths to describe ACTA as non-binding, asserting that “ACTA does not constrain Congress’ authority to change U.S. law,” and that it would operate only as an “Executive Agreement” that “can be implemented without new legislation.” But European negotiators have described the agreement to their legislature in very different terms, asserting that ACTA is “a binding international agreement …
Changing The People: Legal Regulation And American Democracy, Tabatha Abu El-Haj
Changing The People: Legal Regulation And American Democracy, Tabatha Abu El-Haj
Tabatha Abu El-Haj
The world in which we live, a world in which law pervades the practice of democratic politics – from advance regulation of public assemblies to detailed rules governing elections – is the product of a particular period of American history. Between 1880 and 1930, states and municipalities increased governmental controls over the full range of nineteenth-century avenues for democratic participation. Prior to this legal transformation, the practice of democratic politics in the United States was less structured by law and more autonomous from formal state institutions than it is today. Exposing this history challenges two core assumptions driving the work …