Constitutional Law Commons^™

Decoding First Amendment Coverage Of Computer Source Code In The Age Of Youtube, Facebook And The Arab Spring, Jorge Roig

Scholarly Works

Computer source code is the lifeblood of the Internet. It is also the brick and mortar of cyberspace. As such, it has been argued that the degree of control that a government can wield over code can be a powerful tool for controlling new technologies. With the advent and proliferation in the Internet of social networking media and platforms for the publication and sharing of user-generated content, the ability of individuals across the world to communicate with each other has reached truly revolutionary dimensions. The influence of Facebook in the popular revolutions of the Arab Spring has been well documented. …

Judicial Foreign Relations Authority After 9/11, Martin S. Flaherty

NYLS Law Review

No abstract provided.

Layshock Ex Rel. Layshock V. Hermitage School District, Matthew Beatus

NYLS Law Review

No abstract provided.

The Constitutional Imaginary: Just Stories About We The People, Gerald Torres, Lani Guinier

Cornell Law Faculty Publications

No abstract provided.

Custody Rights Of Lesbian And Gay Parents Redux: The Irrelevance Of Constitutional Principles, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

Disputes over custody and visitation can arise when a marriage ends and one parent comes out as gay or lesbian. the heterosexual parent may seek custody or may seek to restrict the activities of the gay or lesbian parent, or the presence of the parent's same-sex partner, during visitation. A gay or lesbian parent's assertion of constitutional rights has not been an effective response to such efforts. that is not likely to change. Advocates for gay and lesbian parents have argued forcefully for a nexus text, permitting consideration of a parent's sexual orientation only when there is evidence of an …

The Balanced Budget Amendment: A Threat To The Constitutional Order, Neil J. Kinkopf

Faculty Publications By Year

No abstract provided.

Same-Sex Marriage, Second-Class Citizenship, And Law's Social Meanings, Michael C. Dorf

Cornell Law Faculty Publications

Government acts, statements, and symbols that carry the social meaning of second-class citizenship may, as a consequence of that fact, violate the Establishment Clause or the constitutional requirement of equal protection. Yet social meaning is often contested. Do laws permitting same-sex couples to form civil unions but not to enter into marriage convey the social meaning that gays and lesbians are second-class citizens? Do official displays of the Confederate battle flag unconstitutionally convey support for slavery and white supremacy? When public schools teach evolution but not creationism, do they show disrespect for creationists? Different audiences reach different conclusions about the …

State Constitutions As Interactive Expressions Of Fundamental Values, Justin R. Long

Law Faculty Research Publications

No abstract provided.

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 …

Self-Conscious Dicta: The Origins Of Roe V. Wade’S Trimester Framework, Randy Beck

Scholarly Works

One of the controversies arising from Roe v. Wade (1973), has concerned whether the conclusions undergirding the opinion's “trimester framework” should be considered part of the holding of the case, or instead classified as dicta. Different Supreme Court opinions have spoken to this question in different ways. This article reviews materials from the files of Justices who participated in Roe, seeking insight as to what the Court thought about the issue at the time. The article concludes that Justices in the Roe majority understood the opinion’s trimester framework to consist largely of dicta, unnecessary to a ruling on the constitutionality …

Attention All Internet Users: How Proposed Amendments To The Communications Decency Act Could Save Your Reputation, Niki Blumentritt

Legislation and Policy Brief

Imagine a beautiful fall day on a Southern college campus. The leaves are changing, and the sound of the band practicing for this weekend’s big game echoes throughout campus.  Jane, a college freshman, is walking through campus on the way back to her dorm from her Biology 101 class.  Usually, Jane’s walk is uneventful, aside from the occasional run-in with a friend or sorority sister; however, today is much different.  Jane notices that many people are staring, pointing, and snickering at her.  Is there something on her face?  She quickly pulls out her compact and realizes that all makeup is …

Order For The Courts: Reforming The Nollan/Dolan Threshold Inquiry For Exactions, Winfield B. Martin

Seattle University Law Review

For decades prior to 2005, Fifth Amendment regulatory takings jurisprudence languished in a state of confused neglect. Rather than articulating a clearly discernable standard for determining whether a violation of the Takings Clause had occurred, Justices rebuffed government action that seemed to amount to “an out-and-out plan of extortion” and nodded in approval when they deemed the government to have “acted diligently and in good faith” or in furtherance of a “compelling interest.” In trying to parse this imprecise thicket, scholars have characterized the Court’s approach to regulatory takings as a “muddle,” in “disarray,” and “incoherent.” Professor Kent even noted …

History Repeats Itself: The Post-Furman Return To Arbitrariness In Capital Punishment, Lindsey S. Vann

University of Richmond Law Review

Part I of this comment provides a brief review of Furmanandthe circumstances leading to the decision. Part II discusses thefactors indicating current arbitrariness and other recurring factors surrounding the American death penalty. Part III examines the development of the Cruel and Unusual Punishments Clause since Furman. Finally, Part IV discusses how the Supreme Court should apply its contemporary Eighth Amendment doctrine to the current circumstances surrounding the imposition of the death penalty.

Dangerous People Or Dangerous Weapons: Access To Firearms For Persons With Mental Illness, Lawrence O. Gostin, Katherine L. Record

Georgetown Law Faculty Publications and Other Works

The recent attempted assassination of Rep. Gabrielle Giffords has once again focused the nation’s attention on the danger of the wide availability of firearms.  The Supreme Court has ruled that gun restrictions may only be imposed on those deemed “prohibited persons” under the Gun Control Act of 1968.  Although some are easily identifiable (e.g., children, convicted felons), one widely inclusive group is not – the mentally ill.

The current system designed to bar the mentally ill from purchasing or possessing firearms is ineffectual due to a lack of reporting and the existence of loopholes.  What’s more, no state has developed …

O.P.P.: How "Occupy's" Race-Based Privilege May Improve Fourth Amendment Jurisprudence For All, Lenese C. Herbert

Seattle University Law Review

This Article submits that Occupy’s race problem could, ironically, prove to be a solution if protesters grow more serious about exposing the injury of political subordination and systems of privilege that adhere to the criminal justice system. Privilege is a “systemic conferral of benefit and advantage [as a result of] affiliation, conscious or not and chosen or not, to the dominant side of a power system.” Accordingly, now that police mistreatment affects them personally, Occupy may finally help kill a fictitious Fourth Amendment jurisprudence that ignores oppression through improper policing based on racial stigma. Occupy may also help usher in …

Conference Program

CYBERBULLYING: Policy, Prevention and Intervention (2011)

No abstract provided.

Disgust And The Problematic Politics Of Similarity, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe

Michigan Law Review

Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman …

About Sdlp

Sustainable Development Law & Policy

No abstract provided.

Social Media And The Vanishing Points Of Ethical And Constitutional Boundaries, Ken Strutin

Pace Law Review

No abstract provided.

Lochner, Lawrence, And Liberty, Joseph F. Morrissey

Georgia State University Law Review

Many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation.

Advocates have made a wide variety of arguments attacking such restrictions. Scholars and litigants frequently argue that such acts violate constitutional guarantees of equal protection or invade a constitutional right to privacy. However, such arguments are often defeated by counter arguments presented with religious, moral, and even emotional fervor.

This article presents and defends a new analytical framework based on liberty of contract to advance gay rights. …

The Complexities Of Judicial Takings, D. Benjamin Barros

University of Richmond Law Review

No abstract provided.

What Will We Lose If The Trial Vanishes?, Robert P. Burns

Faculty Working Papers

The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.

Equal Access Struggle: Counter-Military Recruitment On High School Campuses, 44 J. Marshall L. Rev. 459 (2011), Phillip Ruben Nava

UIC Law Review

No abstract provided.

Barnes-Wallace V. City Of San Diego: "Psychological Injury" And Its Effect On Standing, 44 J. Marshall L. Rev. 507 (2011), Andrew Meyer

UIC Law Review

No abstract provided.

Foreword: The Impact Of Citizens United, 44 J. Marshall L. Rev. Xxiii (2011), Steven D. Schwinn

UIC Law Review

No abstract provided.

Citizens United And Tiered Personhood, 44 J. Marshall L. Rev. 717 (2011), Atiba R. Ellis

UIC Law Review

No abstract provided.

Legal Realism, Innate Morality, And The Structural Role Of The Supreme Court In The U.S. Constitutional Democracy, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

The classical rationale for judicial review of the constitutionality of legislative and executive acts is based on a deterministic assumption about the nature of constitutional legal rules. By the early twentieth century however; American legal realists persuasively questioned the determinancy of law in general and posited that indeterminate cases were decided by judicial intuitions of fairness. Social science research has discovered that self-identified liberals and conservatives predictably place different relative values on different shared moral intuitions. At the same time, neurological research suggests that humans and primates implement "decisions" before the cognitive parts of the brain are even aware that …

Forum, Federalism, And Free Markets: An Empirical Study Of Judicial Behavior Under The Dormant Commerce Clause Doctrine, Mehmet K. Konar-Steenberg, Anne F. Peterson

Faculty Scholarship

This study examines judicial behavior under the dormant Commerce Clause doctrine by drawing on an original database of 459 state and Federal appellate cases decided between 1970 and 2009. The authors use logit regression to show that state judges are more likely to uphold state and local laws against dormant Commerce Clause attack than their Federal judicial counterparts, a result that is consistent with the interstate rivalry issues animating the doctrine. The study also finds that Republican-dominated judicial panels at the state level are more likely to side with tax challengers invoking the dormant Commerce Clause doctrine than are Democratic …

Aryans, Gender, And American Politics, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This short essay discusses some of the ways in which the Aryan movement in America activates gendered beliefs for the goal of legal, political, and cultural transformation. In recent years, the community has moved from common law theories of white sovereignty to more robust forms of racial constitutionalism. The piece is drawn from "America's Forgotten Constitutions: Defiant Visions of Power and Community"