Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Publication Year
- Publication
- Publication Type
Articles 1 - 30 of 36
Full-Text Articles in Law
The Red Pill: Critical Race Theory, Ostrich Law, And The 14th Amendment Right To Free And Equal Thought And Dignity, Kindaka J. Sanders
The Red Pill: Critical Race Theory, Ostrich Law, And The 14th Amendment Right To Free And Equal Thought And Dignity, Kindaka J. Sanders
St. Mary's Law Journal
No abstract provided.
Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan
Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan
Seattle University Law Review
The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …
Advancing America’S Emblematic Right: Doctrinal Bases For The Fundamental Constitutional Right To Vote Per Se, Susan H. Bitensky
Advancing America’S Emblematic Right: Doctrinal Bases For The Fundamental Constitutional Right To Vote Per Se, Susan H. Bitensky
University of Miami Law Review
This Article identifies and examines the Supreme Court’s longstanding unintelligibility with respect to recognition of a fundamental right to vote per se under the Constitution. In a host of equal protection cases, the Court’s refusal to “say what the law is” in this regard has produced a chaotic jurisprudence on the status of the right. Because ours is a constitutional schema consisting of multiple types of rights to vote, the refusal manifests as judicial reliance on and acclamation of some unspecified right to vote. It is refusal by lack of clarity. The unsorted right has led some scholars to conclude …
Political And Non-Political Speech And Guns, Gregory P. Magarian
Political And Non-Political Speech And Guns, Gregory P. Magarian
William & Mary Bill of Rights Journal
No abstract provided.
Gender-Stereotyping Theory, Freedom Of Expression, And Identity, Carlos A. Ball
Gender-Stereotyping Theory, Freedom Of Expression, And Identity, Carlos A. Ball
William & Mary Bill of Rights Journal
This Article argues that the expressive components of gender-stereotyping theory serve to delink the equality protections afforded by that theory from fixed and predetermined identity categories in helpful and positive ways. Many have viewed American antidiscrimination law as being normatively grounded in the notion that there are certain identities that, because of their stable and immutable characteristics, deserve equality-based protections. Gender-stereotyping theory can help make the normative case for a more pluralistic understanding of equality, one that is grounded in the need to protect the fluid and multiple ways in which gender is performed or expressed rather than focusing, as …
Rights Dynamism, Timothy Zick
The Resistance & The Stubborn But Unsurprising Persistence Of Hate And Extremism In The United States, Jeannine Bell
The Resistance & The Stubborn But Unsurprising Persistence Of Hate And Extremism In The United States, Jeannine Bell
Indiana Journal of Global Legal Studies
Though the far right has a long history in the United States, the presidential campaign and then election of Donald Trump brought the movement out of the shadows. This article will analyze the rise in White supremacist activity in the United States-from well-publicized mass actions like the White supremacist march in Charlottesville in August 2017 to individual acts of violence happening since November 2016. This article focuses on contextualizing such incidents within this contemporary period and argues that overt expressions of racism and racist violence are nothing new. The article closes with a call to strengthen the current legal remedies …
Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick
Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick
Faculty Publications
Commentators have expressed concerns that litigants are invoking the First Amendment's Free Speech Clause strategically, in order to compensate for the weakness or futility of other constitutional claims. The phenomenon has been given a label- "opportunism "-and scholars have examined some of its causes and consequences. This Article takes a closer and somewhat skeptical look at the concept offree speech "opportunism." It imagines that the Free Speech Clause will be invoked in challenges to laws or policies that restrict public restroom use based on a person's gender. Would such challenges be "opportunistic, " as the term has been defined? What …
Prisoner's Rights And The Correctional Scheme: The Legal Controversy And Problems Of Implementation - A Symposium - Introduction, Donald W. Dowd
Prisoner's Rights And The Correctional Scheme: The Legal Controversy And Problems Of Implementation - A Symposium - Introduction, Donald W. Dowd
Donald W. Dowd
No abstract provided.
Rights Dynamism, Timothy Zick
The Wholesale Exclusion Of Religion From Public Benefits Programs: Why The First Amendment Religion Clauses Must Take A Backseat To Equal Protection, Michael J. Borger
The Wholesale Exclusion Of Religion From Public Benefits Programs: Why The First Amendment Religion Clauses Must Take A Backseat To Equal Protection, Michael J. Borger
Touro Law Review
No abstract provided.
The Dynamic Relationship Between Freedom Of Speech And Equality, Timothy Zick
The Dynamic Relationship Between Freedom Of Speech And Equality, Timothy Zick
Faculty Publications
This Article examines the dynamic intersection between freedom of speech and equal protection, with a particular focus on the race and LGBT equality movements. Unlike other works on expression and/or equality, the Article emphasizes the relational and bi-directional connections between freedom of speech and equal protection. Freedom of speech has played a critical role in terms of advancing constitutional equality. However, with regard to both race and LGBT equality, free speech rights also failed in important respects to facilitate equality claims and movements. Advocacy and agitation on behalf of equality rights have also left indelible positive and negative marks on …
The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan
Trevor J Calligan
No abstract provided.
The Market For Legal Education And Freedom Of Association: Why The "Solomon Amendment" Is Constitutional And Law Schools Are Not Expressive Associations, Andrew P. Morriss
The Market For Legal Education And Freedom Of Association: Why The "Solomon Amendment" Is Constitutional And Law Schools Are Not Expressive Associations, Andrew P. Morriss
Andrew P. Morriss
This term the Supreme Court will confront the constitutionality of the Solomon Amendment, which mandates equal access for military recruiters at universities that accept federal funding. The Third Circuit previously held the statute unconstitutional. This Article argues that the Court should reverse and uphold the statute because the lower court failed to consider the cartelized nature of legal education and so assumed that law schools are "expressive associations" entitled to assert First Amendment claims; the court also failed to give proper deference to Congress's exercise of its Article I power to raise and support armies and over-valued law faculties' interest …
Partitioning And Rights: The Supreme Court's Accidental Jurisprudence Of Democratic Process, James A. Gardner
Partitioning And Rights: The Supreme Court's Accidental Jurisprudence Of Democratic Process, James A. Gardner
Florida State University Law Review
In democracies that allocate to a court responsibility for interpreting and enforcing the constitutional ground rules of democratic politics, the sheer importance of the task would seem to oblige such courts to guide their rulings by developing an account of the nature and prominent features of the constitutional commitment to democracy. The U.S. Supreme Court, however, has from the beginning refused to develop a general account—a theory—of how the U.S. Constitution establishes and structures democratic politics. The Court’s diffidence left a vacuum at the heart of its constitutional jurisprudence of democratic process, and like most vacuums, this one was almost …
Campus Citizenship And Associational Freedom: An Aristolelian Take On The Nondiscrimination Puzzle, Chapin Cimino
Campus Citizenship And Associational Freedom: An Aristolelian Take On The Nondiscrimination Puzzle, Chapin Cimino
William & Mary Bill of Rights Journal
Student expressive association on campus is a thorny thicket. Student affinity groups often choose to organize around a shared principle or characteristic of the groups’ members, which, by definition, makes those students different in some way from their peers. In order to preserve the group’s sense of uniqueness, these groups often then wish to control their own membership and voting policies. They feel, in essence, entitled to discriminate—a right arguably embodied by the First Amendment freedom of expressive association. When campus groups actually exercise this right, however, they run into university antidiscrimination policies, which can cost them official campus recognition. …
Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne
Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne
Faculty Publications
No abstract provided.
Crawford V. Marion County Election Board: A Picture Is Worth A Thousand Words And Exactly One Vote, Brian C. Crook
Crawford V. Marion County Election Board: A Picture Is Worth A Thousand Words And Exactly One Vote, Brian C. Crook
University of Maryland Law Journal of Race, Religion, Gender and Class
No abstract provided.
Jewish Women Under Siege: The Fight For Survival On The Front Lines Of Love And The Law, Adam H. Koblenz
Jewish Women Under Siege: The Fight For Survival On The Front Lines Of Love And The Law, Adam H. Koblenz
University of Maryland Law Journal of Race, Religion, Gender and Class
No abstract provided.
Gatekeeping Vs. Balancing In The Constitutional Law Of Elections: Methodological Uncertainty On The High Court, Christopher S. Elmendorf, Edward B. Foley
Gatekeeping Vs. Balancing In The Constitutional Law Of Elections: Methodological Uncertainty On The High Court, Christopher S. Elmendorf, Edward B. Foley
William & Mary Bill of Rights Journal
This Essay examines the methodological upheaval created by the quartet of constitutional election law cases decided during October Term 2007. Prior to this Term, the ascendant analytic approach called for a threshold characterization of the burden on the plaintiff's rights, which characterization determined whether the court would apply strict scrutiny or lax, rational-basis-like review. The characterization was generally formal in nature. But in light of the Supreme Court's latest decisions, it is now open to a lower court adjudicating a First Amendment or Equal Protection challenge to an election law-absent a Supreme Court precedent squarely on point- (1) to engage …
Freedom To Err: The Idea Of Natural Selection In Politics, Schools, And Courts, Paul D. Carrington
Freedom To Err: The Idea Of Natural Selection In Politics, Schools, And Courts, Paul D. Carrington
William & Mary Bill of Rights Journal
No abstract provided.
The Continuing Threshold Test For Free Exercise Claims, Andy G. Olree
The Continuing Threshold Test For Free Exercise Claims, Andy G. Olree
William & Mary Bill of Rights Journal
When a claimant challenges some governmental law or action under the Free Exercise Clause of the First Amendment, courts have long required the claimant to make out a prima facie case that the government has burdened the exercise of the claimant's sincerely held religious beliefs. This requirement has been referred to as the threshold test for free exercise claims, since claimants must make this showing as a threshold matter before courts will proceed to evaluate the burden and the governmental interest at stake under some standard of scrutiny. This Article argues that although the Supreme Court of the United States …
Cutter And The Preferred Position Of The Free Exercise Clause, Steven Goldberg
Cutter And The Preferred Position Of The Free Exercise Clause, Steven Goldberg
William & Mary Bill of Rights Journal
No abstract provided.
The Market For Legal Education And Freedom Of Association: Why The "Solomon Amendment" Is Constitutional And Law Schools Are Not Expressive Associations, Andrew P. Morriss
The Market For Legal Education And Freedom Of Association: Why The "Solomon Amendment" Is Constitutional And Law Schools Are Not Expressive Associations, Andrew P. Morriss
William & Mary Bill of Rights Journal
This term the Supreme Court will confront the constitutionality of the Solomon Amendment, which mandates equal access for military recruiters at universities that accept federal funding. The Third Circuit previously held the statute unconstitutional. This Article argues that the Court should reverse and uphold the statute because the lower court failed to consider the cartelized nature of legal education and so assumed that law schools are "expressive associations" entitled to assert First Amendment claims; the court also failed to give proper deference to Congress's exercise of its Article I power to raise and support armies and over-valued law faculties' interest …
Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.
Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.
Michigan Law Review
What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …
Monuments To The Past In A Leveling Wind, Benjamin Means
Monuments To The Past In A Leveling Wind, Benjamin Means
Michigan Law Review
Early in the twentieth century, the Emperor Franz Joseph sponsored a monument to Hungary's history - a Millennium Monument containing statues of the country's heroes, as well as statues of the proud sponsor and his family (p. 5). When the communists took over in 1919, the statues of Franz Joseph and the rest of the Hapsburgs were dragged out of the Millennium Monument and replaced with more politically correct statuary (p. 8). Counterrevolutionaries, though, retook the country and reinstated the Hapsburg Statues in the Millennium Monument - until a later regime once again reshuffled the millennial display (pp. 9-10). Professor …
The Legal Process As A Problem Solving Tool In Education, Mark R. Shedd
The Legal Process As A Problem Solving Tool In Education, Mark R. Shedd
Villanova Law Review
No abstract provided.
The Role Of Law In Higher Education - An Administrator's View, John H. Vanderzell
The Role Of Law In Higher Education - An Administrator's View, John H. Vanderzell
Villanova Law Review
No abstract provided.
The Courts' Responsibility For Prison Reform, Edmund B. Spaeth Jr.
The Courts' Responsibility For Prison Reform, Edmund B. Spaeth Jr.
Villanova Law Review
No abstract provided.
Prisoner's Rights And The Correctional Scheme: The Legal Controversy And Problems Of Implementation - A Symposium - Introduction, Donald W. Dowd
Prisoner's Rights And The Correctional Scheme: The Legal Controversy And Problems Of Implementation - A Symposium - Introduction, Donald W. Dowd
Villanova Law Review
No abstract provided.