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Articles 451 - 480 of 824
Full-Text Articles in Constitutional Law
Aedpa, Saucier, And The Stronger Case For Rights-First Constitutional Adjudication, Stephen I. Vladeck
Aedpa, Saucier, And The Stronger Case For Rights-First Constitutional Adjudication, Stephen I. Vladeck
Scholarly Articles in Law Reviews & Journals
As part of a symposium on new affirmative visions of the judicial role, this essay takes on the Supreme Court's increasing unwillingness to resolve constitutional questions in post-conviction habeas cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), as seen in decisions such as Wright v. Van Patten, 128 S. Ct. 743 (2008). In most cases in which AEDPA applies, a petitioner is only eligible for relief if a state court's constitutional error was unreasonable based on prior Supreme Court decisions (and not dicta). As a result, the Court has repeatedly concluded that a state court did …
Reforming The State Secrets Privilege, Amanda Frost
Reforming The State Secrets Privilege, Amanda Frost
Newsletters & Other Publications
Since September 11, 2001, President George W. Bush’s Administration has repeatedly asserted the state secrets privilege as grounds for the dismissal of civil cases challenging the legality of its conduct in the war on terror. Specifically, the Administration has sought dismissal of all cases challenging two different government practices: (1) its use of “extraordinary rendition,” under which the Executive removes suspected terrorists to foreign countries for interrogation; and (2) the National Security Agency’s (NSA’s) warrantless wiretapping of electronic communications. The government argues that the plaintiffs’ claims in these cases can neither be proven nor defended against without disclosure of information …
Fade To Black: The Formalization Of Jackson's Youngstown Taxonomy By Hamdan And Medellin, Michael J. Turner
Fade To Black: The Formalization Of Jackson's Youngstown Taxonomy By Hamdan And Medellin, Michael J. Turner
American University Law Review
This Comment argues that the Court’s holding in Medellin modifies Jackson’s tripartite taxonomy by effectively eliminating the “zone of twilight.” By requiring a “systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,” the Court is essentially extending the first category—executive action with the express or implied authorization of Congress—to cover the middle “zone of twilight,” at odds with the very purpose of the zone. Additionally, the Comment argues that Hamdan establishes Congress’s “disabling” power in the third category, which, combined with Medellin’s interpretation, crates a new standard for Jackson’s taxonomy, one moor similar …
Symposium: Reflections On Tinker, Tinker Turns 40: Freedom Of Expression At School And Its Meaning For American Democracy - April 16, 2009 - Symposium: Foreword , Mary Beth Tinker
Symposium: Reflections On Tinker, Tinker Turns 40: Freedom Of Expression At School And Its Meaning For American Democracy - April 16, 2009 - Symposium: Foreword , Mary Beth Tinker
American University Law Review
Mary Beth Tinker recounts her upbringing and her family’s involvement in important issues of their day. Tinker discusses how her family’s commitment to social justice was shaped by her parents religious values, and how this shaped their commitments to civil rights, ultimately leading to their protesting ongoing injustices. In particular, Tinker discusses how she, her siblings, and friends wore black armbands calling for a Christmas Truce in the Vietnam War and how the case that went before the Supreme Court was one of a series of events in her family’s journey for equality.
Symposium: Tinker At Forty: Defending The Right Of High School Students To Wear Controversial Religious And Pro-Life Clothing, Jay Alan Sekulow, Erik M. Zimmerman
Symposium: Tinker At Forty: Defending The Right Of High School Students To Wear Controversial Religious And Pro-Life Clothing, Jay Alan Sekulow, Erik M. Zimmerman
American University Law Review
This Article argues for broad First Amendment protection for “controversial” religious and pro-life student expression. The vast majority of religious and pro-life clothing is no more likely to create an actual disturbance that substantially disrupts school functions than a peace armband worn during Vietnam, the student expression upheld in the seminal case of Tinker v. Des Moines Independent Community School District. Section I of this Article discusses several Supreme Court student speech cases with an emphasis on their applicability to situations involving high school students who wear “controversial” religious and pro-life clothing. This section argues that Tinker’s substantial disruption test—not …
Symposium: Shrinking Tinker: Students Are Persons Under Our Constitution - Except When They Aren't , Frank D. Lomonte
Symposium: Shrinking Tinker: Students Are Persons Under Our Constitution - Except When They Aren't , Frank D. Lomonte
American University Law Review
The central proposition of this Article is that the school/student relationship is a distinctive one, and that student speakers on school property stand in a fundamentally different posture than do pamphleteers on the public sidewalk. This unique relationship has been recognized by the courts, but only selectively, where the uniqueness works to the disadvantage of the speaker. It is time that courts acknowledge that, because students are “captive” in school for the best hours of their day, and because students have a legally enforceable right to be on school grounds for purposes that expressly include the exchange of ideas, student …
Transitioning Our Prisons Toward Affirmative Law: Examining The Impact Of Gender Classification Policies On U.S. Transgender Prisoners, Richael Faithful
Transitioning Our Prisons Toward Affirmative Law: Examining The Impact Of Gender Classification Policies On U.S. Transgender Prisoners, Richael Faithful
The Modern American
No abstract provided.
Cutt Ing Funds For Oral Contracept Ives: Violation Of Equal Protection Rights And The Disparate Impact On Women’S Healt Hcare, Rachel V. Rose
Cutt Ing Funds For Oral Contracept Ives: Violation Of Equal Protection Rights And The Disparate Impact On Women’S Healt Hcare, Rachel V. Rose
The Modern American
No abstract provided.
Jones V. Bennet: The Bifurcated Legal Status Of Early Nineteenth Century Free Blacks In Kentucky, Alexander J. Chenault
Jones V. Bennet: The Bifurcated Legal Status Of Early Nineteenth Century Free Blacks In Kentucky, Alexander J. Chenault
The Modern American
No abstract provided.
This Game Is Rigged: The Unequal Protection Of Our Mentall Y-Ill Incarcerated Women, Joanna E. Saul
This Game Is Rigged: The Unequal Protection Of Our Mentall Y-Ill Incarcerated Women, Joanna E. Saul
The Modern American
No abstract provided.
Commentary On Proposition 8: Much Ado About Nothing; Or A Wake-Up Call To Do Something, Lydia Edwards
Commentary On Proposition 8: Much Ado About Nothing; Or A Wake-Up Call To Do Something, Lydia Edwards
The Modern American
No abstract provided.
Postracial Discrimination , Girardeau A. Spann
Postracial Discrimination , Girardeau A. Spann
The Modern American
No abstract provided.
Symposium: Oiling The Schoolhouse Gate: After Forty Years Of Tinkering With Teachers' First Amendment Rights, Time For A New Beginning , Alexander Wohl
Symposium: Oiling The Schoolhouse Gate: After Forty Years Of Tinkering With Teachers' First Amendment Rights, Time For A New Beginning , Alexander Wohl
American University Law Review
This Article will examine how (and how far) we have fallen from the legal precedent and educational principles behind Tinker, specifically the increasingly remote standards courts have used to chip away (and sometimes sledgehammer) the speech rights of teachers. To this end, the Article will consider some of the unique and fundamental characteristics associated with a profession that has at its core the mission of encouraging speech, raising questions, and teaching the ability to think—in short, “expressive activities.” It will also look at how the increasingly restrictive standards do not reflect fully the challenges posed by the advent of new …
Transcript: Taking The Heat: Gender Discrimination In Firefighting Event, American University Women And The Law Program
Transcript: Taking The Heat: Gender Discrimination In Firefighting Event, American University Women And The Law Program
American University Journal of Gender, Social Policy & the Law
No abstract provided.
Symposium: No Enclaves Of Totalitarianism: The Triumph And Unrealized Promise Of The Tinker Decision , Jamin B. Raskin
Symposium: No Enclaves Of Totalitarianism: The Triumph And Unrealized Promise Of The Tinker Decision , Jamin B. Raskin
American University Law Review
The Supreme Court's decision in Tinker v. Des Moines Independent Community School District forty years ago did for the ideal of expressive freedom in America's public schools what Brown v. Board of Education did for the ideal of racial equality. It made a core value of the Bill of Rights spring to life for young people facing authoritarian treatment at the hands of adult officials running their school systems. By privileging the right of students to engage in passionate political communication over the school's interest in maintaining discipline or the community’s interest in maintaining pro-war consensus, the Tinker decision was …
Symposium: The Civil Rights Roots Of Tinker's Disruption Tests, Kristi L. Bowman
Symposium: The Civil Rights Roots Of Tinker's Disruption Tests, Kristi L. Bowman
American University Law Review
This past spring marked the fortieth anniversary of Tinker v. Des Moines Independent Community School District, the landmark student speech case in which the Supreme Court held that three students were protected by the First Amendment when they wore black armbands in their Des Moines, Iowa public schools to protest the Vietnam War. Looking at Supreme Court precedent alone, it would seem as though the Tinker tests were created out of whole cloth: the substantial or material disruption, reasonable anticipation of such disruption, and rights of others tests did not have much of a basis in earlier Supreme Court decisions. …
Symposium: Tinker's Midlife Crisis: Tattered And Transgressed But Still Standing, Clay Calvert
Symposium: Tinker's Midlife Crisis: Tattered And Transgressed But Still Standing, Clay Calvert
American University Law Review
This article examines the erosion of the strength of the Supreme Court’s 1969 opinion in Tinker v. Des Moines Independent Community School District. Indicators of decline range from Justice Thomas’ stunning call in Morse v. Frederick for overruling Tinker to recent lower-court opinions using Tinker to censor off-campus expression posted on the Internet. The article explores possible reasons for the decline and abuse of Tinker and it makes suggestions for its reinvigoration. Part I highlights and analyzes other indicators of the erosion, decline, and abuse of Tinker. Part II then explores some possible reasons and explanations for the midlife crisis …
Accuracy Or Fairness: The Meaning Of Habeas Corpus After Boumediene V. Bush And Its Implications On Alien Removal Orders, Jennifer Norako
Accuracy Or Fairness: The Meaning Of Habeas Corpus After Boumediene V. Bush And Its Implications On Alien Removal Orders, Jennifer Norako
American University Law Review
Part One of this Comment will examine the developments of the writ of habeas corpus throughout the history of the United States, beginning with the importance the Founding Fathers placed on the writ. This section will also examine the recent changes in federal court review of alien removal orders, beginning with the 1996 legislation and continuing with the REAL ID Act, along with the federal courts’ responses to those acts. Part Two will then examine the majority opinion in Boumediene v. Bush, addressing the meaning and purpose that Justice Kennedy attached to the writ of habeas corpus and the analytical …
The Limits Of Executive Power, Robert J. Reinstein
The Limits Of Executive Power, Robert J. Reinstein
American University Law Review
Justice Jackson’s concurring opinion in The Steel Seizure Case has taken on iconic status among legal scholars and had been adopted by the Supreme Court as the governing framework for evaluating presidential power. But Jackson’s principles are conclusory, do not rest on any historical foundation, and raise as many questions as they answer. He fails to examine, much less justify, the existence or scope of implied presidential powers, nor does he meaningfully explain the extent to which those powers are subject to congressional regulation and override. I apply novel originalist methodologies to answer those unexamined questions, with important consequences to …
The Appropriations Power And Sovereign Immunity, Paul F. Figley
The Appropriations Power And Sovereign Immunity, Paul F. Figley
Scholarly Articles in Law Reviews & Journals
Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence - or nonexistence - of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690–1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the …
Symposium: Foot In The Door - The Unwitting Move Towards A New Student Welfare Standard In Student Speech After Morse V. Frederick, Francisco M. Negron, Jr.
Symposium: Foot In The Door - The Unwitting Move Towards A New Student Welfare Standard In Student Speech After Morse V. Frederick, Francisco M. Negron, Jr.
American University Law Review
This article discusses an emerging legal trend that may expand schools’ abilities to protect their students. It focuses on Morse v. Frederick, a 2007 decision popularly known as the “Bong Hits 4 Jesus” case in which the court held that a school principal may restrict student speech that can be reasonably viewed as promoting illegal drug use. Negron argues that when read together, the majority opinion and Justice Alito and Justice Kennedy’s concurring opinion, permit schools to regulate student expression that may threaten student welfare. Justices Alito and Kennedy sought to limit the majority’s holding to speech involving illegal drug …
A Long, Strange Trip: Guantanamo And The Scarcity Of International Law, Richard J. Wilson
A Long, Strange Trip: Guantanamo And The Scarcity Of International Law, Richard J. Wilson
Working Papers
From June of 2004, through June of 2007, I represented Omar Khadr, a detainee at Guantanamo Bay, Cuba. Omar, a Canadian citizen, was 15 years old when captured, and he was - and is - one of the very few detainees facing trial by a military commission. President Obama's decision to close Guantanamo and to put the commission trials on hold leaves us all with questions as to what will happen. This reflection was written in 2007, just about when I stopped representing Omar. The lower federal courts have not, in my view, used international law in any meaningful way …
Substance Or Illusion - The Dangers Of Imposing A Standing Threshold, Amanda Leiter
Substance Or Illusion - The Dangers Of Imposing A Standing Threshold, Amanda Leiter
Scholarly Articles in Law Reviews & Journals
No abstract provided.
Private School Tuition At The Public's Expense: A Disabled Student's Right To A Free Appropriate Public Education , Michael J. Tentido
Private School Tuition At The Public's Expense: A Disabled Student's Right To A Free Appropriate Public Education , Michael J. Tentido
American University Journal of Gender, Social Policy & the Law
No abstract provided.
O To A, For Helping Kill O: Wisconsin's Decision Not To Bar Inheritance To Individuals Who Assist A Decedent In Suicide, Matthew Barry Reisig
O To A, For Helping Kill O: Wisconsin's Decision Not To Bar Inheritance To Individuals Who Assist A Decedent In Suicide, Matthew Barry Reisig
American University Journal of Gender, Social Policy & the Law
No abstract provided.
Reforming The State Secrets Privilege, Amanda Frost
Reforming The State Secrets Privilege, Amanda Frost
Scholarly Articles in Law Reviews & Journals
No abstract provided.
The Problem Of Jurisdictional Non-Precedent, Stephen I. Vladeck
The Problem Of Jurisdictional Non-Precedent, Stephen I. Vladeck
Scholarly Articles in Law Reviews & Journals
Most critiques of the Supreme Court's June 2008 decision in Boumediene v. Bush (including Justice Scalia's dissent in the same) have at their core the argument that Justice Kennedy's majority opinion is inconsistent with prior precedent, specifically the Supreme Court's 1950 decision in Johnson v. Eisentrager. A closer read of Eisentrager, though, reveals a surprisingly unclear opinion by Justice Jackson, that seems to go out of its way to reach various issues on the merits even after suggesting that the federal courts lacked jurisdiction over habeas petitions filed by 22 Germans convicted of war crimes by a U.S. military tribunal …
Constitutional Borrowing, Robert L. Tsai
Constitutional Borrowing, Robert L. Tsai
Scholarly Articles in Law Reviews & Journals
Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. The authors' examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law …
Rights, Remedies And Facial Challenges, Maya Manian
Rights, Remedies And Facial Challenges, Maya Manian
Scholarly Articles in Law Reviews & Journals
In a few short years, the Roberts Court has managed to severely restrict the use of facial challenges across substantive areas of constitutional law. Caitlin Borgmann's article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, provides a compelling analysis of the vexing distinction between as applied and facial challenges in constitutional litigation and the impact that limiting facial challenges has on constitutional rights. Borgmann argues that facial challenges are necessary to keep legislatures in check, particularly when legislatures "deliberately or recklessly infringe individual rights" of those who lack political power. Facial challenges are needed in this context not only to protect …
It's Not Just Shopping Urban Lofts, And The Lesbian Gay-By Boom: How Sexual Orientation Demographics Can Inform Family Courts , Todd Brower
It's Not Just Shopping Urban Lofts, And The Lesbian Gay-By Boom: How Sexual Orientation Demographics Can Inform Family Courts , Todd Brower
American University Journal of Gender, Social Policy & the Law
No abstract provided.