Law Commons^™

God, Guns, And Hair Salons: Public Perceptions Of Rights And Liberties During The Covid-19 Pandemic, Jessica R. Graham, Kyle J. Morgan

West Virginia Law Review

In response to the COVID-19 pandemic, elected officials across the United States took efforts to slow the spread of the virus. Some of these efforts raised constitutional questions about the ability of the government to curtail rights during a crisis. This project makes use of an original dataset—letters to the editor submitted to 33 of the nation’s largest newspapers during the early months of the pandemic—to analyze public attitudes about these restrictions. Like much of the previous work regarding attitudes towards rights and liberties during a crisis, we find that these concerns are not front of mind to the public. …

Lessons Of The Plague Years, Barry Sullivan

Faculty Publications & Other Works

The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a controversial figure, beginning the fourth year of a highly idiosyncratic administration. He was both a candidate for re-election and the subject of an ongoing impeachment proceeding. In these circumstances, the pandemic quickly became politicized. President Trump's response to the COVID-19 pandemic has often …

Response To Professor Dinner, Martha Albertson Fineman

Faculty Articles

I want to thank the Texas A&M Law Review for including my work in this special Issue and express my appreciation to Professor Dinner for her thoughtful comments concerning the evolution of my scholarship. Professor Dinner raises the question of whether that earlier work is relevant to the Dobbs v. Jackson Women’s Health Organization opinion, specifically, and to broader issues of reproductive justice, more generally. For me, Dobbs illustrates—once again—how our American obsession with both individual rights and Supreme Court jurisprudence can distort our sense of the possibilities for achieving social (or reproductive) justice. I see my work as an …

Rights And Duties In Jewish Law, Itamar Rosensweig, Shua Mermelstein

Touro Law Review

In this Article, we argue that rights play a central role in Jewish law. In Section I, we reconstruct Robert Cover’s thesis distinguishing the West’s jurisprudence of rights from Judaism’s jurisprudence of obligation. In Section II, we present Rabbi Lichtenstein’s theory that rights play no central role in Jewish law. We show that the theories of Rabbi Lichtenstein and Robert Cover have given rise to the idea that there are no rights in Jewish law, only obligations. In Section III we develop two types of arguments in support of our position that rights are central to Jewish law. Our first …

The Essential Meaning Of The Rule Of Law, Thomas W. Merrill

Faculty Scholarship

We have heard much in recent times about the rule of law. Everyone seems to be in favor of it. Everyone seems to think that those with whom they strongly disagree are violating it. Let me remind you of a few examples.

President Obama, frustrated by Congress’s failure to adopt immigration reform, stated at a cabinet meeting that he still had a “pen and a phone.” He proceeded to announce a policy called DACA, short for Deferred Action for Childhood Arrivals, which effectively adopted a type of amnesty for some 700,000 persons who had arrived in the country as children …

Cases And Materials On West Virginia Constitutional Law, Robert M. Bastress Jr.

Open Access Law Books

No abstract provided.

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

The Resilience Of Substantive Rights And The False Hope Of Procedural Rights: The Case Of The Second Amendment And The Seventh Amendment, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

At first glance, there seem to be strong affinities between the Second Amendment and the Seventh Amendment. Both the right to keep and bear arms and the right to civil jury trial potentially empower ordinary citizens. Both could check elites.

But there are crucial differences between these rights. I focus on two of them here. The first is relatively straightforward; it concerns individual accountability—or the lack thereof—and the ability to understand responsibilities. Gun owners and users generally have individual responsibility for their actions, and the ability to understand their responsibilities. In contrast, by design civil jurors lack individual responsibility. And …

Fortifying American Emergency Power: A Multinational Comparison To Contain Crises, Courtney Devore

Vanderbilt Journal of Transnational Law

Countries will inevitably face emergencies. Historically, governments have exercised immense power in response to emergencies. For responses to be quick and effective, emergency power operates outside of the normal rule of law. While disbanding the normal rule of law may be necessary from time to time to protect national security, the unilateral ability of government to take such action creates perverse incentives to abuse the power. Abuses of emergency power are found across the globe, most notably occurring in the United States recently.

In the wake of the Trump Administration, this Note seeks to identify how and why the US …

How Actions Affirm: Reflections On The Question Of Affirmative Action, Doron Menashe

Touro Law Review

No abstract provided.

Introduction To The Conference: Commemorating The Life And Legacy Of Charles A. Reich, Rodger D. Citron

Touro Law Review

No abstract provided.

An Unstable Core: Self-Defense And The Second Amendment, Eric Ruben

Faculty Journal Articles and Book Chapters

In District of Columbia v. Heller, the Supreme Court announced for the first time that self-defense, not militia service, is the “core” of the right to keep and bear arms. However, the Court failed to articulate what that means for the right’s implementation. After Heller, most courts deciding Second Amendment questions have mentioned self-defense only superficially or not at all. Some courts, however, have run to the opposite extreme, leaning heavily on the platitude that firearms have utility for lawful self-defense as a rationale for effectively immunizing them from regulation. This Article examines that inconsistency and considers whether self-defense law …

Rescinding Inclusion In The Administrative State: Adjudicating Daca, The Census, And The Military's Transgender Policy, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke

Calvert Undergraduate Research Awards

Advanced Research Winner 2019:

While the concept of substantive due process has guided judicial decision making even prior to the Civil War, it has become a lightning rod among the juristic community especially since the 1960s. This controversy includes issues ranging from the applicability and reliability to the cogency and legitimacy of the doctrine of substantive due process Many scholars attribute the skepticism toward the concept of substantive due process to be the result of a paradigm shift in the middle of the 20^th century when this concept transitioned from an economic and property rights based approach to one …

Loyalty Without Borders: In Honor Of Arthur Jacobson, George P. Fletcher

Faculty Scholarship

The essence of loyalty is partiality – putting friends, political party, a particular country ahead of its competitors. The ambiguity of this definition lies in question: putting the recipients of loyalty close in what way? In the case of loyalty to a spouse, the loyal lover forswears sex with others. In voting and supporting, say, the Democrats, one does not contribute to the Republicans. By remaining loyal to the United States, one does not offer to join the military or serve in the civil defense force of another country.

As I wrote in 1993 in Loyalty: An Essay on the …

Book Review: 51 Imperfect Solutions: States And The Making Of American Constitutional Law, By Hon. Jeffrey S. Sutton, Steven H. Steinglass

Law Faculty Articles and Essays

The Hon. Jeffrey S. Sutton, a judge on the United States Court of Appeals for the Sixth Circuit, has written an excellent book on the importance of state constitutions as bulwarks against state abuse and the source of protections of individual rights. The book, 51 Imperfect Solutions: States and the Making of American Constitutional Law, argues that individual rights are more secure when both federal and state constitutional protections are strong. And our system of federalism and the quality of state and federal judicial decisions are improved when there are state constitutional safeguards.

Religious Freedom, Human Rights, And Peaceful Coexistence, Leslie C. Griffin

Scholarly Works

At the Second Vatican Council, Fr. John Courtney Murray, S.J., persuaded the Catholic Church to abandon its long, and absolute, opposition to the separation of church and state. He brought a new concept of religious freedom to the Catholic Church. In honor of Murray, this essay looks at several current ways “religious freedom” harms individual rights.

The article describes the ministerial exception, which gives religious organizations the right to dismiss many employment discrimination lawsuits brought against them. It studies women’s right to contraceptive access, which has long been opposed by the Catholic hierarchy, and where employers have earned a legal …

La Méthode Comparative En Droit Public, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Putting Equality To A Vote: Individual Rights, Judicial Elections, And The Arkansas Supreme Court, Billy Corriher

University of Arkansas at Little Rock Law Review

No abstract provided.

Acs Spring Kick-Off Meeting, Cardozo American Constitution Society For Law And Policy

Flyers 2016-2017

No abstract provided.

Justice Brandeis And Civic Duty In A Pluralistic Society, Joel K. Goldstein

Touro Law Review

No abstract provided.

Questions, Questions: Has Weber Had An Impact On Unions’ Representational Responsibilities In Workplace Human Rights Disputes?, Claire Mummé

Law Publications

This essay attempts to put forward a research agenda for properly evaluating the changing nature of unions’ human rights representational obligations since Weber. I begin by investigating two legal questions: first, whether unions are held to a more stringent duty of fair representation (DFR) standard in regards to members’ discrimination grievances than prior to Weber and Parry Sound, and second, whether there has been a broadening of the concept of union discrimination under human rights codes, such that unions may be held liable for failing to bring forward discrimination grievances. With the legal picture in place, I then set out …

"Facts Are Stubborn Things": Protecting Due Process From Virulent Publicity, Benjamin Brafman, Darren Stakey

Touro Law Review

No abstract provided.

The Failure Of The Universal Declaration Of Human Rights, Jacob Dolinger

University of Miami Inter-American Law Review

The UN Human Rights Commission dedicated over two years to the drafting of the Universal Declaration of Human Rights, which was approved by the General Assembly in 1948.

The underlying reason for the Declaration was the genocide executed by Hitler’s Nazi Germany against the Jewish people throughout Europe during the Second World War. The fundamental mistake of the Commission was that the persecution by the Nazis was not directed against individual persons, but against an entire people, whereas the Declaration deals exclusively with the rights of the individual human being, no reference whatsoever made in the document to collectivities.

Moreover, …

Taking To The Sea: The Modern Seasteading Movement In The Context Of Other Historical Intentional Communities, Megan Binder

Indiana Journal of Global Legal Studies

Though its mission may seem to belong to the realm of science fiction-establishing self-sufficient, floating cities on the high seas-the modern seasteading movement is simply the next iteration of mankind's long quest to establish more perfect societies. If they wish to accomplish their goals, seasteaders must be prepared to confront and overcome serious obstacles on technological, social, and legal fronts. Reviewing other historical examples of intentional communities offers a glimpse of the potential challenges that are common across all such movements and suggests that, to ensure long-term success, seasteaders may benefit longterm from pursuing international recognition of sovereignty for their …

The Right To Same-Sex Marriage: Formalism, Realism, And Social Change In Lawrence (2003), Windsor (2013), & Obergefell (2015), Ronald Kahn

Maryland Law Review

No abstract provided.

Can We Afford Liberty?, Arthur J. Goldberg

Akron Law Review

I would like to venture the suggestion, however, that the real gravamen of Chief Justice Burger's address has been overlooked. In a very real sense, the Chief Justice is raising the question of whether, in light of the serious nature of crime in America, we can afford liberty and decisions of the Supreme Court, largely during the Warren era, which enforced the Bill of Rights in the case of those charged with crime.

I therefore propose in this address to discuss the question of whether we can afford liberty under present circumstances.

Shelby, Race, And Disability Rights, Ravi Malhotra

Journal of Race, Gender, and Ethnicity

No abstract provided.

Preferential Judicial Activism, Sudha Setty

Journal of Race, Gender, and Ethnicity

No abstract provided.

Putting The Community In Communication: Dissolving The Conflict Between Freedom Of Expression And Copyright, Carys Craig

Carys Craig

This paper is concerned with the relationship between freedom of expression and copyright law — and, more specifically, with what this relationship reveals about the nature and purpose of the copyright interest. I argue that the source of the apparent conflict between copyright and free expression is the prevailing characterization of both as individual rights vested in the liberal subject. The key to dissolving the conflict lies in the recognition of the social values that these rights affirm: the value that we attach to communication, to interaction between members of society and to participation in a social dialogue. If copyright …