Law Commons^™

Associations And Forums: Situating Cls V. Martinez, Ashutosh Bhagwat

UC Law Constitutional Quarterly

This article explores certain problematic aspects of the Supreme Court's modern First Amendment doctrine through the lens of the Court's 2010 decision in Christian Legal Society v. Martinez. In Martinez the Court upheld a decision by Hastings College of the Law, a public law school, to deny official recognition to a religious student group because the group excluded students based on their religion and sexual orientation. Applying free speech doctrine, the Court found that the Hastings's decision and the policy underlying it were reasonable, viewpoint-neutral restrictions on speech in a limited public forum. While the result reached by the Martinez …

Christian Legal Society V. Martinez: Six Frames, Toni M. Massaro

UC Law Constitutional Quarterly

In Christian Legal Society v. Martinez, the United States Supreme Court upheld the Hastings Law School registered student organization ("RSO") policy, which required that all student groups comply with a nondiscrimination condition on RSO status and benefits. Viewing the case as a matter of government benefits, the Court held that the Christian Legal Society ("CLS") was obliged to comply with an "all-comers" condition on access to benefits, despite the burden on CLS members' expressive associational, free speech and religious freedom to organize around religious beliefs. According to the Court, the policy was a reasonable and viewpoint neutral condition on access …

How Equality Constitutes Liberty: The Alignment Of Cls V. Martinez, Julie A. Nice

UC Law Constitutional Quarterly

Across the constitutional doctrines protecting individual liberty from governmental interference, judicial inquiry often focuses on the unequal infringement of liberty. Many of the most important individual rights have emerged from the synergy between equality and liberty. But the Court has not yet provided any framework for understanding the various ways that liberty and equality interrelate. Neither has any consensus developed around any scholarly attempt to understand the relationship between liberty and equality. Without any grand theory, the search for understanding this important relationship is thus left to induction, as scholars examine one case at a time to glean both specific …

Protecting Surface Land By Internalizing The Cost Of Oil And Gas Development: Wyoming's Surface Owner Accommodation Act Strikes A More Sustainable Balance, Jennifer A. Richardson

UC Law Constitutional Quarterly

Split estate mineral lands have been well established in the United States since 1900, but state legislatures have only recently begun to reexamine whether damages to the surface estate should be paid for by the surface owner or instead by the mineral developer. The Wyoming Surface Owner Accommodation Act ("WSOAA") is one such state law that allows surface owners to be compensated for impacts to the surface estate's value beyond the compensation provided for by federal law. However, unlike the preempted mining regulations of several other states, the WSOAA supplements federal regulations in a permissible manner because it does not …

Changes To The Culture Of Adversarialness: Endorsing Candor, Cooperation And Civility In Relationships Between Prosecutors And Defense Counsel, Lissa Griffin, Stacy Caplow

UC Law Constitutional Quarterly

The newest revision of the influential ABA Standards for the Prosecution and Defense Function recognizes the changing practices and attitudes in today's criminal justice system. Placing even more responsibility on prosecutors than past versions, the proposed Standards require prosecutors to be problem-solvers and reformers who consult and cooperate with defense counsel when engaging in both routine and systemic matters. These changes signal new responsibilities for prosecutors that call for more than lip service to their role as administrators of justice. Candor, cooperation and civility are now explicit values that should pervade all dealings between prosecutors, defense lawyers and courts.

Lochner V. New York (1905) And Kennedy V. Louisiana (2008): Judicial Reliance On Adversary Argument, Douglas E. Abrams

UC Law Constitutional Quarterly

Chief Justice William H. Rehnquist called Lochner v. New York "one of the most ill-starred decisions that [the Supreme Court] ever rendered." The Justices' deliberations in the case demonstrate the courts' reliance on advocacy in the adversary system of civil and criminal justice. The stark imbalance between the state's "incredibly sketchy" brief and Joseph Lochner's sterling submission may have determined Lochner's outcome, and thus may have changed the course of constitutional history, by leading two Justices to join the majority on the central question of whether New York's maximum-hours law for bakery workers was a reasonable public health measure.

The …

Secure In Their Yards - Curtilage, Technology, And The Aggravation Of The Poverty Exception To The Fourth Amendment, Amelia L. Deidrich

UC Law Constitutional Quarterly

Throughout the history of American jurisprudence, curtilage-the physical space surrounding a home-has been deemed to share the heightened Fourth Amendment protections that have traditionally been applied to the home itself. However, a recent trend in United States Supreme Court decisions has carved out an exception to the heightened Fourth Amendment protection of curtilage. In cases involving an alleged Fourth Amendment search where technological advancements were used in the intrusion of a defendant's curtilage, the Court fails to apply the traditionally heightened Fourth Amendment protections to curtilage. This change threatens to aggravate the already present Poverty Exception to the Fourth Amendment …

Whose Constitution Is It Anyway - The Executives' Discretion To Defend Initiatives Amending The California Constitution, Jeremy Zeitlin

UC Law Constitutional Quarterly

The decision of then Governor Arnold Schwarzenegger and Attorney General Jerry Brown to refuse to appeal the United States District Court's findings in Perry v. Schwarzenegger, striking down Proposition 8 as unconsitutional, was a bare assertion of executive power. Although plainly contrary to the will of the majority of the electorate who implemented Proposition 8, the Governor and Attorney General's decision was lawful because it stemmed from the wide discretionary powers that the California Constitution and the Government Code grant to the state's executive officers. Instead, the only check to the particular manner executives wield their discretionary authority is the …

Too Big To Fail And Too Big To Pay: States, Their Public-Pension Bills, And The Constitution, Debra Brubaker Burns

UC Law Constitutional Quarterly

Faced with the most severe budget crises since the Great Depression, many state officials and lawmakers within the United States are desperately trying to pay their bills and balance their budgets. More than a few economists, reporters, academicians, lawyers, and politicians are arguing about legal solutions for pension liabilities that are too big to pay, including possible federal bailouts for states that are deemed "too big to fail."

States choosing to default on or repudiate any public-pension obligation would face significant legal challenges to any action that impaired those pensions. Beyond the protections of the Constitution's Contract Clause, state constitutional …

Does A Broad Free Exercise Right Require A Narrow Definition Of Religion, Donald L. Beschle

UC Law Constitutional Quarterly

The Supreme Court case of Employment Division v. Smith revived an older view of the Constitution's Free Exercise Clause that protected believers only from government acts aimed at beliefs specifically, where those acts grew out of hostility to the religious belief rather than a desire to advance or protect otherwise legitimate nonreligious goals. This reversion to a previously discarded standard by the Supreme Court was much criticized, and states around the country sought to undo its effect by enacting and applying strict scrutiny standards for governmental regulation of religious belief despite there no longer being a Free Exercise exemption.

This …

Contemporary Prosecutions Of Civil Rights Era Crimes: An Argument Against Retroactive Application Of Statute Of Limitations Amendments, Michael Rowe

Journal of Criminal Law and Criminology

No abstract provided.

The Status Quo Bias And Counterterrorism Detention, Gregory S. Mcneal

Journal of Criminal Law and Criminology

No abstract provided.

Racial Discrimination In The Administration Of The Death Penalty: The Experience Of The United States Armed Forces (1984–2005), David C. Baldus, Catherine M. Grosso, George Woodworth, Richard Newell

Journal of Criminal Law and Criminology

No abstract provided.

International Initiatives That Facilitate Global Mobility In Higher Education, Laurel Terry

Faculty Scholarly Works

This article identifies a number of international initiatives that have contributed to, reflect, or facilitate global higher education mobility. The article begins by presenting statistics about global higher education mobility. The sections that follow address a number of “hard law” and “soft law” international initiatives that promote such mobility. The initiatives discussed in the article include, inter alia, European Union initiatives, the Bologna Process which led to the creation of the European Higher Education Area, and higher education initiatives of the Asia Pacific Economic Cooperation (APEC), the World Trade Organization, the United Nations, and the Organization of Economic Cooperation and …

In And Out Behind The Desk - In And Out Of The Country, Kimberli Morris Kelmor

Law Library Faculty Works

The author discusses her experiences as an "out" lesbian librarian, both in the United States and abroad.

Sex Offender Exceptionalism And Preventative Detention, Corey Rayburn Yung

Journal of Criminal Law and Criminology

No abstract provided.

Plato’S Theory Of Democratic Decline, Brenner M. Fissell

Hofstra Law Faculty Scholarship

While democracy is derided for a variety of reasons in Plato’s thought, his most damning critique of that regime type does not involve an observation about democracy qua democracy, but of the transition that it so easily engenders: the decline to tyranny. Regimes are composed of individuals and groups, though, and Plato is anxious to ascribe culpability for the degradation. Two actors are the primary focus of his analysis — the political leaders and the demos. At times he emphasizes the puissance of the demos, but in other passages he suggests it is the leaders who are most authoritative. This …

Why Misdemeanors Matter: Defining Effective Advocacy In The Lower Criminal Courts, Jenny Roberts

Hofstra Law Faculty Scholarship

Most individuals accused in our nation’s criminal courts are not charged with murder, rape, drug sales, or even less serious felonies. The vast majority of charges are in the lower courts, for misdemeanors such as marijuana possession, driving with a license suspension for failure to pay tickets, assault, disorderly conduct, or public intoxication. Misdemeanor adjudications have exploded in recent years, with one recent study estimating that the volume of misdemeanor cases nationwide has risen from five to more than ten million between 1972 and 2006. At the same time, violent crime and the number of felony cases across the country …

A Research Agenda For International Law Librarianship, Barbara H. Garavaglia

Book Chapters

The goal of the Research Agenda for International Law Librarianship is to suggest research priorities for law librarians around the world. It is hoped that the Agenda, created by the Board of the International Association of Law Libraries (IALL) will inspire creative thinking and stimulate research, publication and educational programmes by law librarians and legal information professionals on the most important topics, issues, trends and developments in the field.

The Political Pathway: When Will The Us Adopt A Vat?, Reuven S. Avi-Yonah

Book Chapters

The reason the VAT is on the table is also stated in the referenced article by Orszag: "Although hardly anyone wants to admit it, we're not going to solve our budget deficit unless revenue is part of the equation." And while in the short term it may be possible to address the deficit by raising income tax rates(Orszag suggests letting all the Bush tax cuts expire in 2013}, in the long term it doesn't seem plausible that we can raise sufficient revenue that way to pay for Medicare, Medicaid, Social Security, interest on the national debt, and defense and some …

Women Behind The Wheel: Gender And Transportation Law, 1860-1930, Margo Schlanger

Book Chapters

Gender difference is only infrequently mentioned in recent negligence cases. To contemporary (mostly non-essentialist) eyes, gender difference seems to appear only mildly relevant to tort law's area of concern: care and harm to others and self. But in the early days of modern tort law, when gender differences loomed larger in the consciousness of American jurists, and unabashedly so, judicial opinions more frequently grappled with how negligence doctrine ought to take account of female difference. This chapter explores opinions published between approximately 1860 and 1930 that illuminate this issue in cases involving women drivers and passengers of cars and wagons. …

The Cultural Background Of The Legal Imagination, James Boyd White

Book Chapters

I want to speak in this essay about one aspect of the origins of what is often called the law and literature movement in the United States, namely, how it got going. I shall do this by explaining the aims and assumptions of my own early contribution to it in the form of The Legal Imagination (first published in 1973). What I say will thus have some of the features of autobiography, but I hope it will be plain that this story is not really about me but about the state of the culture in which modern law and literature …

Exploring The Determinants Of High-Cost Mortgages To Homeowners In Low- And Moderate-Income Neighborhoods, Michael S. Barr, Jane K. Dokko, Benjamin J. Keys

Book Chapters

In spite of the recent impetus to reform home mortgage markets, particularly as they affect low- and moderate-income (LMI) households, little systematic evidence is available about how potential abuses in mortgage lending manifest in the mortgages held by those households. While racial discrimination in mortgage markets has a long history in the United States, the role of mortgage brokers in lending has only recently increased and become controversial. In this chapter, we uncover two mechanisms through which differential mortgage pricing occurs among LMI homeowners: black borrowers and borrowers who use mortgage brokers pay more for mortgage loans than other borrowers, …

Tribute: Dores Mccrary Mccree, David L. Chambers

Articles

Dores McCree made your day a little better whenever she walked into a room. When you talked with her, you knew her goal was simply to enjoy your company, not to get something out of you, and not to show herself off. She was good at talking and good at listening. She'd cock her head slightly and ask questions to which she really cared about the answers. On more than one occasion, I had to jockey with others to be able to sit with her at a dinner.

Reflections On Class In American Legal Education, Richard O. Lempert

Articles

Professor Richard Sander's Class in American Legal Education is an almost unique effort to examine empirically the social class origins of American law school students and to relate law student class origins to law school stratification, the class structure of American society and the potential law school applicant pool. His effort, and the special attention he gives to the class composition of elite law schools comes perhaps at a fortuitous time in the history of American legal education. The law degree, like the medical degree, has long been a route for upward mobility in American society. But the access of …

Who Must Testify To The Results Of A Forensic Laboratory Test? Bullcoming V. New Mexico, Richard D. Friedman

Articles

Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report through the in-court testimony of a supervisor or other person who did not perform or observe the reported test?

A Vision For Scaling Microfinance: More Than Dollars And Smarts, Deborah Burand

Book Chapters

The following is a stock-taking of some of the key initiatives that have taken place to date in the world of microfinance at building an international financial architecture that attracts and retains flows of commercial capital to microfinance. It also is a call to those of us in the microfinance world to do much, much more.

Between Minimum And Optimum World Public Order: An Ethical Path For The Future, Steven Ratner

Book Chapters

Among the most significant contributions of policy-oriented jurisprudence to our understanding of international legal process is its identification of minimum and optimum world public order as the overarching goals of international law. Minimum public order in its essence refers to the global state of affairs with limited recourse to unauthorized violence to solve disputes, while optimum public order is synonymous with a world in which human dignity is maximally protected. These two concepts, augmented by other pairings now second-nature to us (for example, authority and control, and myth system and operational code), have also permeated—in the latter case, germinated in—the …

Top-Down Or Bottom-Up? A Look At The Unification Of Private Law In Federal Systems, Daniel Halberstam, Mathias Reimann

Book Chapters

At its current stage, European private law is still more an aspiration than a reality. It is true that there is a substantial body of European private law on the Union level; and it is also true that there are private law principles and rules shared by many—often by most, and sometimes even by all—European legal systems. Still, in most areas, we do not at present have one body of positive private law for all of Europe, but rather a coexistence of more or less similar national laws. Thus, to the extent one considers a European private law desirable, one …

Securities Law In The Roberts Court: Agenda Or Indifference?, Adam C. Pritchard

Articles

To outsiders, securities law is not all that interesting. The body of the law consists of an interconnecting web of statutes and regulations that fit together in ways that are decidedly counter-intuitive. Securities law rivals tax law in its reputation for complexity and dreariness. Worse yet, the subject regulated-capital markets-can be mystifying to those uninitiated in modem finance. Moreover, those markets rapidly evolve, continually increasing their complexity. If you do not understand how the financial markets work, it is hard to understand how securities law affects those markets.