Constitutional Law Commons^™

Judicial Modesty And The Jury, Suja A. Thomas

University of Colorado Law Review

No abstract provided.

Navigating Dangerous Constitutional Straits: A Prolegomenon On The Federal Marriage Amendment And The Disenfranchisement Of Sexual Minorities, Ronald J. Krotosynski, Jr., E. Gary Spitko

University of Colorado Law Review

No abstract provided.

How Traditional And Minority Religions Fare In The Courts: Empirical Evidence From Religious Liberty Cases, Gregory C. Sisk

University of Colorado Law Review

There is an enduring legal myth that members of minority religious groups face a decidedly uphill battle in securing accommodation for or even tolerance of unconventional religious practices, expression, or values from the courts. According to conventional wisdom, traditional Christian believers may anticipate a more hospitable welcome from the judiciary when asserting claims of conscience or religious liberty. However based upon an empirical study of religious liberty decisions in the federal courts, the proposition that minority religions are less successful with their claims was found to be without empirical support, at least in the modern era and in the lower …

Child Custody, Religious Practices, And Conscience, Kent Greenwalt

University of Colorado Law Review

This article asks to what extent considerations relating to religion should figure in custody disputes. One inquiry is whether the kind of religious life that a parent plans for his or her child should figure in the decision whether to grant custody to that parent. The article focuses on a religious life that involves very substantial deprivation no after-school activities, no television, no pets, no reading except schoolwork and the Bible-from an ordinary secular perspective. A second inquiry is whether one parent of a divorced couple should be able to prevent the other parent from exposing a child to various …

Rites And Rights In Afghanistan: The Hazara And The 2004 Constitution, Justin Deystone

Publications

No abstract provided.

Considering Individual Religious Freedoms Under Tribal Constitutional Law, Kristen A. Carpenter

Publications

As American Indian nations revitalize their legal systems, there is renewed interest in "tribal law," that is, the law of each of the Indian nations. Today, there is a particular focus on the subject of "individual rights" under tribal law. In tribal contexts, people are highly interested in the legal institutions and rules that govern their lives, especially as many tribal communities are experiencing a period of great political, social, and economic change. At the national level, the Supreme Court repeatedly expresses concern about whether individuals, especially non-Indians, will be treated fairly in tribal court. For scholars, individual rights under …

The Property Clause And New Federalism, Allison H. Eid

University of Colorado Law Review

No abstract provided.

Two Wrongs Make A Right: Hybrid Claims Of Discrimination, Ming Hsu Chen

Publications

This Note reinterprets and recontextualizes the pronouncement in Employment Division v. Smith (Smith II) that exemptions from generally applicable laws will not be granted unless claims of free exercise are accompanied by the assertion of another constitutional right. It argues that when Arab American Muslims, and others who are of minority race and religion, bring claims for exemption from generally applicable laws on the basis of free exercise and equal protection principles, they ought to be able to invoke Smith II's hybridity exception, thus meriting heightened judicial scrutiny and increased solicitude from courts.

The Divergence Of Constitutional And Statutory Interpretation, Kevin M. Stack

University of Colorado Law Review

No abstract provided.

Property Clause For The Twenty-First Century, John D. Leshy

University of Colorado Law Review

No abstract provided.

Diversity And The Practice Of Interest Assessment, Robert F. Nagel

Publications

No abstract provided.

Not For Attribution: Government's Interest In Protecting The Integrity Of Its Own Expression, Helen Norton

Publications

Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers' views are not mistakenly attributed to the government. Consider, for example, Virginia's efforts to ban the Sons of Confederate Veterans' display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of "hate" or "heritage," Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier "VIRGINIA." The Fourth Circuit was unpersuaded, holding that the …

Tacking Left: A Radical Critique Of Grutter, Daria Roithmayr

Publications

No abstract provided.

You Can't Ask (Or Say) That: The First Amendment And Civil Rights Restrictions On Decisionmaker Speech, Helen Norton

Publications

Federal, state, and local civil rights laws regulate private decisionmaking about whom an employer may hire or fire, to whom a landlord may rent an apartment, or to whom a creditor may extend credit. In prohibiting discriminatory conduct, however, these laws also limit the speech of those making these decisions. In this Article, Professor Norton explores how we might think about these civil rights laws in the context of the First Amendment, and their place within the Supreme Court's commercial speech jurisprudence. She concludes that the speech restricted by these laws may be characterized as falling outside the protection of …

Marbury V. Madison And Modern Judicial Review, Robert F. Nagel

Publications

This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence …

Justice White And Judicial Review, Philip J. Weiser

Publications

No abstract provided.

Twenty-First Century Planning And The Constitution, Michael Lewyn

University of Colorado Law Review

No abstract provided.

The Right To Receive Information, Susan Nevelow Mart

Publications

Ms. Mart examines the legal evolution of the right to receive information, particularly focusing on its application to libraries, beginning with the Supreme Court holding in Board of Education v. Pico, and followed by cases that have considered the meaning of Pico in a variety of library-related contexts.

Sacred Sites And Religious Freedom On Government Land, Richard B. Collins

Publications

No abstract provided.

Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel

Publications

No abstract provided.

Access, Adequacy And Equality: The Constitutionality Of School Fee Financing In Public Education, Daria Roithmayr

Publications

This article explores the question of whether charging school fees for public education violates s 29 or s 9 of the Constitution. The article concludes that fees may be unconstitutional, for two reasons. First, charging school fees may violate learners' rights to basic education under s 29, because a fee-based financing system creates problems with both access and adequacy. Despite the availability of exemptions for the poor, the school fee regime of financing appears to completely bar access for some learners. It also unconstitutionally burdens the right to access for others by requiring families to expend significant portions of …

Locked In Inequality: The Persistence Of Discrimination, Daria Roithmayr

Publications

In this Article, I argue that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, I make two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one--make it too difficult for an institution to discontinue discriminating. Even when institutional actors are filly committed to eradicating racial disparity, they may be constrained from …

Is The Renquist Court An "Activist" Court? The Commerce Clause Cases, Randy E. Barnett

University of Colorado Law Review

No abstract provided.

Law And Information Platforms, Philip J. Weiser

Publications

No abstract provided.

Is Tradition Activist? The Common Law Of The Family In The Liberal Constitutionalist World, James R. Stoner

University of Colorado Law Review

No abstract provided.

Conservatives And The Seven Sins Of Judicial Activism, William P. Marshall

University of Colorado Law Review

No abstract provided.

What Bush V. Gore Means For Elections In The 21st Century, Helen Norton

Publications

No abstract provided.

An Essay On The Professional Responsibility Of Affirmative Action In Higher Education, Emily Calhoun

Publications

No abstract provided.

Beyond Interpretation, Pierre Schlag

Publications

No abstract provided.

The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part Ii, H. Patrick Furman

Publications

This two-part article reviews the constitutional and statutory right to a speedy trial and discusses the case law interpreting that right. The first part was printed in July 2002.

See Part I at http://scholar.law.colorado.edu/articles/550/.