Constitutional Law Commons^™

Post-Sovereign Constitution-Making And Its Pathology In Iraq, Andrew Arato

NYLS Law Review

No abstract provided.

The Making Of A Constitution In Afghanistan, J. Alexander Thier

NYLS Law Review

No abstract provided.

Headscarves In German Public Schools: Religious Minorities Are Welcome In Germany, Unless — God Forbid — They Are Religious, Ruben Seth Fogel

NYLS Law Review

No abstract provided.

Political Advocacy On The Supreme Court: The Damaging Rhetoric Of Antonin Scalia, Stephen A. Newman

NYLS Law Review

No abstract provided.

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

Recoiling From Religion, Marc O. Degirolami

Faculty Publications

This is an essay reviewing Professor Marci A. Hamilton's book, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW (Cambridge Univ. Press 2005).

Professor Marci Hamilton has written a forceful and obviously heartfelt book that should give pause to committed champions of religious free exercise. She argues convincingly that religious freedom is too often invoked to shield opprobrious and socially harmful activity, and she describes numerous examples of such abuses that make any civilized person's blood run cold. Her avowed aims are to debunk the “hazardous myth” that religion is “inherently and always good for society” and to increase …

Religious Discourse In The Public Square, David Blaikie, Diana Ginn

Articles, Book Chapters, & Popular Press

Full, open, and civilized discourse among citizens is fundamental to the life of a liberal democracy. It seems trite to assert that no discourse should be prohibited or excluded simply because it is grounded in religious faith or employs religious beliefs to justify a particular position. Yet there are those who contend that it is improper for citizens to use religious arguments when debating or deciding issues in the public square, that metaphorical arena where issues of public policy are discussed and contested. In this article we challenge this position, examining the various arguments that are put forward for keeping …

Restoring The Lost Constitution, Not The Constitution In Exile, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The Constitution we have now is redacted. Any practicing lawyer will tell you that you cannot go into court and argue the Ninth Amendment. You cannot go into court and argue the Privileges or Immunities Clause. Until United States v. Lopez you could not argue the Commerce Clause; after Gonzales v. Raich, it is not clear you can argue the Commerce Clause anymore. You cannot argue the Necessary and Proper Clause. You cannot argue the Republican Guarantee Clause. You cannot argue the Second Amendment outside the Fifth Circuit. Whole sections of the Constitution are now gone. This is the …

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

ExpressO

In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new …

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

Through The Looking Glass: Judicial Deference To Academic Decision Makers, The Conflict In Higher Education Between Fundamental Program Requirements And Reasonable Accommodations Under Section 504 Of The Rehabilitation Act And The Americans With Disabilities Act., Douglas Rush

ExpressO

No abstract provided.

The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt

ExpressO

This article discusses the Supreme Court’s use of the rhetoric of white innocence in deciding racially inflected claims of constitutional shelter. It argues that the Court’s use of this rhetoric reveals that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of the Court’s concern with …

The Recognition Of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, And Strategic Institutional Choice, Nancy J. Knauer

ExpressO

The emerging field of comparative institutional analysis (CIA) has much to offer public policy analysts. However, the failure of CIA to address the dynamic process through which social goals are articulated limits the scope of its application to the largely prescriptive pronouncements of legal scholars. By examining the movement for equal recognition of same-sex relationships, this Essay builds on the basic observations of CIA and introduces a new dimension, namely the dynamic process through which social goals are articulated and social change is pursued. The acknowledgment that the production of social goals involves institutional behavior, as well as multiple sites …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Lost In The Shuffle: State-Recognized Tribes And The Tribal Gaming Industry, Alexa Koenig, Jonathan Stein

ExpressO

This article presents the emerging argument that Native American tribes that have received state but not federal recognition have a legal right to engage in gaming under state law. This argument is based on five points: that 1) the regulation of gaming is generally a state right; 2) state tribes are sovereign governments with the right to game, except as preempted by the federal government; 3) federal law does not preempt gaming by state tribes; 4) state tribal gaming does not violate Equal Protection guarantees; and 5) significant policy arguments weigh in favor of gaming by state tribes under state …

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

ExpressO

The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.

Deterring Roper’S Juveniles: Why Immature Criminal Youth Require The Death Penalty More Than Adults – A Law & Economics Approach, Moin A. Yahya

ExpressO

In Roper v. Simmons, the United States Supreme Court declared the death penalty for juveniles unconstitutional. It relied on three reasons, one of which concerns this article, namely the theory that juveniles are less culpable and deterrable than adults. The Court relied on the American Medical Association’s amicus brief which purported to show scientifically that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly preferred the present over the future, who loved gains no matter how risky but did not care for losses, and who could not engage in proper cost-benefit analysis, because …

Home As A Legal Concept, Benjamin Barros

ExpressO

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal …

Race Against The Machine: An Argument For The Standardization Of Voting Technology, Jason Belmont Conn

ExpressO

In this article/note, I examine a lingering question from the court cases arising out of the 2000 election: Does Bush v. Gore and the relevant equal protection case law open the door for a legal challenge to a state’s use of different voting machines/technologies and how do racial disparities in machine error rates impact this analysis? In addition to reviewing the current literature and case law on voting machine standardization, I also present an unrecognized and undocumented connection between the “all deliberate speed” order in Brown and the Court’s discussion of voting technology in Bush v. Gore.

Abu Ghraib, Diane Marie Amann

Scholarly Works

This article posits a theoretical framework within which to analyze various aspects of post-September 11 detention policy - including the widespread prisoner abuse that has been documented in the leaks and official releases that began with publication of photos made at Iraq's Abu Ghraib prison. Examined are the actions of civilian executive officials charged with setting policy, of judicial officers who evaluated it, and military personnel who implemented it. Abuse has been attributed to failures of training or planning. The article concentrates on a different failure, the failure of law to keep lawlessness in check. On September 11, law's map …

Reviving A Natural Right: The Freedom Of Autonomy, Michael Anthony Lawrence

ExpressO

America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman’s right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack.

Whatever became of the ideal that represented the very foundation …

Robert Dahl's How Democratic Is The American Constitution?: An Introduction, With Notes On The Electoral College, Michael Herz

Cardozo Law Review

No abstract provided.

Remarks On Robert Dahl's How Democratic Is The American Constitution?, John P. Mccormick

Cardozo Law Review

No abstract provided.

Copyright Law, The Production Of Creative Works And Cultural Growth In Cyberspace , Alina Ng

ExpressO

The Internet has affected information flow in copyrighted content in a profound manner. Authors and artists are enabled through the Internet to assert greater control over the flow of information in their works as these new technologies offer new and different distribution channels for content. These new technologies also allow consumers to use content in ways, which had not been anticipated by the copyright industries. This paper presents that copyright law was developed for a specific purpose, which was to encourage learning and growth. As new technologies emerge and as content industries experience changes in information flow in copyrighted works, …

Copyright Law, The Production Of Creative Works And Cultural Growth In Cyberspace , Alina Ng

ExpressO

The Internet has affected information flow in copyrighted content in a profound manner. Authors and artists are enabled through the Internet to assert greater control over the flow of information in their works as these new technologies offer new and different distribution channels for content. These new technologies also allow consumers to use content in ways, which had not been anticipated by the copyright industries. This paper presents that copyright law was developed for a specific purpose, which was to encourage learning and growth. As new technologies emerge and as content industries experience changes in information flow in copyrighted works, …

Roger Williams On Liberty Of Conscience, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

A Right To No Meaningful Review: The Aftermath Of Shalala V. Illinois Council On Long Term Care, Inc., Ruqaiijah Ayanna Yearby

ExpressO

A RIGHT TO NO MEANINGFUL REVIEW: THE AFTERMATH OF SHALALA v. ILLINOIS COUNCIL ON LONG TERM CARE, INC. Ruqaiijah A. Yearby

The Due Process Clause of the Fifth Amendment has been perverted in the federal administrative system. Federal agencies, such as the U.S. Department of Health and Human Services (HHS), regularly deprive individuals of liberty and property with little to no review. In its regulation of the health care industry through the Medicare program, HHS often turns a blind eye to procedural Due Process protections, such as providing individuals an opportunity to challenge the deprivation of property at a hearing, …

Book Review: Forensic Linguistics, Dru Stevenson

ExpressO

Review of John Gibbons' text "Forensic Linguistics"

Compliance Theory And The Inter-American Court Of Human Rights, Morse Hyun-Myung Tan

ExpressO

This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.

Awakening An Empire Of Liberty: Exploring The Roots Of Socratic Inquiry And Political Nihilism In American Democracy, Maurice R. Dyson

ExpressO

This book review timely examines Cornel West’s latest sequel to his 1992 best seller, Race Matters. In Democracy Matters, West unflinchingly examines the waning of democratic energies and nihilistic practices of private and public sector in our present age of democracy. This review takes a critical examination of the logic underpinning West’s arguments, his nomenclature of various nihilism plaguing our society, the sometimes clumsy employment of literary devices and his thesis regarding the ‘niggerization’ of America after 9/11 that can serve as a basis for unifying collective action against imperialism. West makes a compelling argument that the public needs to …