Law Commons^™

The Incompatibility Principle, Harold H. Bruff

Publications

No abstract provided.

The Constitution Is The Social Contract So It Must Be A Contract ... Right? A Critique Of Originalism As Interpretive Method, Paul Lermack

William Mitchell Law Review

No abstract provided.

From Kiev To Columbus: A Perspective On Judicial Independence, Thomas J. Moyer

Indiana Law Journal

Conference of Chief Justices and Conference of State Court Administrators Annual Meeting July 29-August 2, 2006 Indianapolis, Indiana.

The Right To Contract: Use Of Domestic Partnership As A Strategic Alternative To The Right To Marry Same-Sex Partners, Dara Purvis

Faculty Scholarship

Shortly after the Civil War, a series of cases argued that the Civil Rights Act of 1866 gave black Americans the right to make contracts, including a marriage contract, with whomever they chose. While the cases were almost uniformly unsuccessful at that time, this paper argues that claims based on private contracts replicating some of marriage’s benefits, stripped of the social and religious freight of marriage, are more compelling. State constitutional amendments banning not only marriage, but any legal recognition of a marriage-like relationship, demonstrate that animus underlies the prohibitions and that the amendments violate the Equal Protection Clause even …

The Presidential Signing Statements Controversy, Ronald A. Cass, Peter L. Strauss

Faculty Scholarship

Presidential signing statements have come out of obscurity and into the headlines. Along with salutary attention to an interesting issue, the new public visibility of signing statements has generated much overblown commentary. The desire to make these little-known documents interesting to the public – and to score points in the inevitable political battles over any practice engaged in by a sitting President – has produced a lot of discussion that misleads the public and has tended to obscure the significant issues surrounding the use of signing statements. Reflection may help put the discussion in a more useful perspective. We offer …

Introducing The Law Of Nonprofit Organizations And Philanthropy, David A. Brennen

Law Faculty Scholarly Articles

On January 5,2007, the Nonprofit and Philanthropy Law Section of AALS held its first program at the AALS Annual Meeting in Washington, D.C. The program, entitled "State-Level Legal Reform of the Law of Nonprofit Organizations," was a fitting way to launch what should prove to be a valuable contribution to the study of law relating to nonprofit organizations and philanthropy. This burgeoning area of academic legal study is well poised to grow by leaps and bounds in the coming years due to its impact on many traditional areas of legal study, including tax law, corporate law, estate law, trust law, …

Displacing Dissent: The Role Of "Place" In First Amendment Jurisprudence, Thomas P. Crocker

Fordham Law Review

No abstract provided.

The Constitution In A Postmodem Age, Calvin Massey

Washington and Lee Law Review

No abstract provided.

How To Think About Voter Fraud (And Why), Chad Flanders

All Faculty Scholarship

In recent months, debates over voter fraud have consumed state legislatures and blogs, courts and election commissions. The prevailing way of framing that debate has been in terms of numbers and statistics: how much voter fraud is there, and does the amount of voter fraud justify new measures to prevent it? In my essay, I argue for a shift away from statistical analysis and towards normative discourse. Only if we understand why (and whether) voter fraud is bad will we be able to decisively settle debates about what should be done about it, if anything.

The first part of my …

Foreword: Reclaiming The First Amendment: Constitutional Theories Of Media Reform, Marjorie Heins, Eric M. Freedman

Hofstra Law Review

No abstract provided.

The Independent Significance Of The Press Clause Under Existing Law, C. Edwin Baker

Hofstra Law Review

No abstract provided.

Interpreting Bills Of Rights: The Value Of A Comparative Approach, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

In certain jurisdictions, among them Malaysia, Singapore, and the United States, the practice of consulting comparative legal materials in interpreting domestic bills of rights has been criticized as illegitimate. This article examines four main concerns: (1) the texts of bills of rights -- the argument that a bill of rights is to be interpreted within its own four walls and not in the light of analogies drawn from other jurisdictions; (2) national identity -- the argument that a bill of rights embodies the values of a nation's people, and it is wrong to refer to foreign experiences to determine such …

The Aggregate Harmony Metric And A Statistical And Visual Contextualization Of The Rehnquist Court: 50 Years Of Data, Peter A. Hook

Articles by Maurer Faculty

This article contains aggregated data from fifty years of the annual matrixes of justice inter-agreement for particular Supreme Court terms published by the Harvard Law Review (1956 to 2005 terms). Aggregating how often any two justices sided together on cases for a particular term relative to the amount of cases the two justices heard together allows one to derive a measure of the particular term that reflects the relative amount of agreement or disagreement for the term. This new metric, called the Aggregate Harmony Metric, allows for comparative benchmarks. For instance, the 2005 term, with an aggregate agreement of 70%, …

Dismantling Roe Brick By Brick-The Unconstitutional Purpose Behind The Federal Partial-Birth Abortion Act Of 2003, Caroline Burnett

University of San Francisco Law Review

This Note focuses on the purpose prong of the undue burden test and argues that the federal ban is unconstitutional because its only purpose is to impose an undue burden on a woman's right to seek an abortion.

Levinson And Constitutional Reform: Some Notes, Stephen M. Griffin

Maryland Law Review

No abstract provided.

Geographic Representation And The U.S. Congress, Frances E. Lee

Maryland Law Review

No abstract provided.

Constitutional Reforms To Enhance Democratic Participation And Deliberation: Not All Clearly Trigger The Article V Amendment Process, Carol Nackenoff

Maryland Law Review

No abstract provided.

What Is A Twentieth-Century Constitution?, Peter E. Quint

Maryland Law Review

No abstract provided.

From “Just” To “Just Decent”? Constitutional Transformations And The Reordering Of The Twenty-First-Century Public Sphere, Cindy Skach

Maryland Law Review

No abstract provided.

Afterword: Do We Really Believe Any Longer In The Possibility Of “Government From Reflection And Choice”? A Dour Meditation On Our Present Situation, Sanford Levinson

Maryland Law Review

No abstract provided.

Broad Exemptions In Animal-Cruelty Statutes Unconstitutionally Deny Equal Protection Of The Law, William A. Reppy Jr.

Law and Contemporary Problems

This article considers the history, interpretation, and constitutionality of statutory exemptions that preclude prosecution either for misdemeanor or felony violation of North Carolina's criminal animal-cruelty statute, section 14-3601 of the General Statutes, in nine situations.

Promoting And Establishing The Recovery Of Endangered Species On Private Lands: A Case Study Of The Gopher Tortoise, Blake Hudson

Journal Articles

Important species are increasingly threatened on private lands and remain largely unregulated by federal and state laws. The gopher tortoise, present within six south-eastern states, is one such species. The tortoise is a keystone species, meaning that upon its existence numerous other species depend. Despite its ecological importance, tortoise populations have declined by 80%, partly due to development pressures, but primarily due to forest management practices which reduced the longleaf pine ecosystem upon which it depends by 96%. This article focuses on legal and policy issues associated with both urban development and forest management of lands containing the gopher tortoise. …

Federalism And Accountability, Timothy Meyer

Vanderbilt Law School Faculty Publications

This article examines how one particular state institution, state attorneys general (SAGs), has operated within a unique set of institutional and political constraints to create state-based regulation with nationwide impact in policy areas including consumer protection, antitrust, environmental regulation, and securities regulation. This state-based regulation casts doubt on one of the principle rationales advanced in the Supreme Court's anticommandeering line of cases for limiting federal power; namely, that judicially-enforced limits on federal power enhance electoral accountability, a concept central to our democracy. If in the absence of federal regulation narrowly accountable state-based actors from a small number of states can …

Sending The Self-Execution Doctrine To The Executioner, Aya Gruber

Publications

No abstract provided.

Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow

Faculty Publications

In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy …

The Paradoxical Structure Of Constitutional Litigation, Pamela S. Karlan

Fordham Law Review

No abstract provided.

Above The Law? The Constitutionality Of The Ministerial Exemption From Antidiscrimination Law, Caroline Mala Corbin

Fordham Law Review

This Article critiques the constitutional underpinnings of the “ministerial exemption,” which grants religious organizations immunity from discrimination suits brought by “ministerial” employees. These employees, who range from parochial schoolteachers to church music directors, cannot assert Title VII race or sex discrimination claims against their religious employers--regardless of whether or not religious belief motivated the discrimination. Lower courts and commentators assert that the right of church autonomy created by the religion clauses requires this result, but the Supreme Court has never blessed (nor rejected) it. This Article argues there is no place for the ministerial exemption under the Supreme Court's current …

The Machine Gun Statute: Its Controversial Past And Possible Future, Leslie Wepner

Fordham Law Review

No abstract provided.

Minimalism Versus Perfectionism In Constitutional Theory, Editors' Forward

Fordham Law Review

No abstract provided.

Second-Order Perfectionism, Cass R. Sunstein

Fordham Law Review

No abstract provided.