Constitutional Law Commons^™

Employment Discrimination: Recent Developments In The Supreme Court (Symposium: The Supreme Court And Local Government Law: The 1992-93 Term), Eileen Kaufman

Scholarly Works

At a symposium entitled, “The Supreme Court and Local Government Law; The 1992/93 Term”, Professor Eileen Kaufman spoke about the cases involving employment discrimination that were decided during that particular Term, Hazen Paper Company v. Biggins and St. Mary's Honor Center v. Hicks. While Hazen is an age discrimination case and St. Mary's is a Title VII case, they can be viewed as companion cases which serve to explain what an employment discrimination plaintiff must now establish when attempting to prove disparate treatment by indirect evidence. By way of preview, suffice it to say that plaintiff's task has been made …

Restricting The Right Of Correspondence In The Prison Context: Thornburgh V. Abbott And Its Progeny, Samuel J. Levine

Scholarly Works

In Thornburgh v. Abbott, the Supreme Court upheld the constitutionality of regulations that allowed prison officials to reject certain publications sent by publishers to prisoners. Finding the regulations reasonably related to legitimate penological interests, the Court for the first time applied a reasonableness standard to restrictions that directly affected the First Amendment rights of nonprisoners. Part I of this Note briefly reviews the instrumental Supreme Court decisions addressing First Amendment rights in the prison context. This Part traces the development of the standard of review for prison regulations that restrict First Amendment freedoms for both prisoners and nonprisoners. It concludes …

United States Supreme Court: 1993-94 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

Toward A More Perfect Union: A Federal Cause Of Action For Physician Aid-In-Dying, Todd David Robichaud

University of Michigan Journal of Law Reform

Part I of this Note investigates the possible foundations of a constitutional right to physician aid-in-dying triggering section 1983 protection and the opposing state interests in preventing suicide. Part II examines the nature and scope of and obstacles to a request for section 1983 relief. Finally, Part III focuses on the public policy implications associated with recognizing a federal cause of action.

The Power Of Presumptions, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Once you start to notice it, you see it everywhere. Burden-shifting is pervasive.The author began to notice the power of presumptions when examining how to protect the rights "retained by the people" referred to in the Ninth Amendment without having to enumerate each one. He proposed the creation of a "presumption of liberty" that would extend the same protective presumption now accorded freedom of speech to all other rightful exercises of liberty. This presumption would shift the burden to the government to justify as necessary and proper any restriction on the rightful exercise of any liberty.

Employment Discrimination: Recent Developments In The Supreme Court, Eileen Kaufman

Touro Law Review

No abstract provided.

Civil Rights: People V. Dieppa

Touro Law Review

No abstract provided.

Civil Service Appointments And Promotions: Mancuso V. Levitt

Touro Law Review

No abstract provided.

Education: Reform Educational Financing Inequities Today V. Cuomo

Touro Law Review

No abstract provided.

Equal Protection: Chin V. Board Of Elections

Touro Law Review

No abstract provided.

Home Rule: Walker V. Town Of Hempstead

Touro Law Review

No abstract provided.

Ineffective Assistance Of Counsel: People V. Morin

Touro Law Review

No abstract provided.

Right To Counsel: People V. Rivera

Touro Law Review

No abstract provided.

Search And Seizure: People V. Galak

Touro Law Review

No abstract provided.

Search And Seizure: People V. Martinez

Touro Law Review

No abstract provided.

Search And Seizure: People V. Mondello

Touro Law Review

No abstract provided.

Book Review. Legitimacy And History: Self-Government In American Constitutional Theory, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

The Right To Privacy And The Public's Right To Know: The "Central Purpose" Of The Freedom Of Information Act, Fred H. Cate, D. Annette Fields, James K. Mcbain

Articles by Maurer Faculty

No abstract provided.

The Legitimacy Of The Constitutional Judge And Theories Of Interpretation In The United States, Richard Kay, William B. Fisch

Faculty Articles and Papers

The paper addresses the sources of legitimacy of a judge exercising the power to declare acts of government invalid on constitutional grounds, and their relationship to theories of interpretation of the constitutional texts. In perhaps no other country is the legitimacy of the constitutional judge a more important issue than in the United States. Constitutional judicial review of acts of the government has had, and continues to have, a profound effect on the extent and character of public action. The constitutional decisions of the courts govern, to a significant degree, some of the most intensely controversial questions of public policy. …

Textualism And The Future Of The Chevron Doctrine, Thomas W. Merrill

Faculty Scholarship

The last decade has been a remarkable one for statutory interpretation. For most of our history, American judges have been pragmatists when it comes to interpreting statutes. They have drawn on various conventions – the plain meaning rule, legislative history, considerations of statutory purpose, canons of construction – "much as a golfer selects the proper club when he gauges the distance to the pin and the contours of the course." The arrival of Justice Scalia on the Supreme Court has changed this. Justice Scalia is a foundationalist, insisting that certain interpretational tools should be permanently banned from judicial use. What …

Trivial Rights, Philip A. Hamburger

Faculty Scholarship

In the summer of 1789, when the House of Representatives was formulating the amendments that became the Bill of Rights, Theodore Sedgwick of Massachusetts argued against enumerating the right of assembly. The House, he urged, "might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased, that he might get up when he pleased, and go to bed when he thought proper ... [Was] it necessary to list these trifles in a declaration of rights, under a Government where none of them were …

Reflections Inspired By My Critics, Philip Chase Bobbitt

Faculty Scholarship

The crucial idea in constitutional law is legitimacy; the crucial idea in jurisprudence is justification.

For some time, the academic debate about U.S. constitutionalism has looked for justifications for our practices, believing this would confer legitimacy on them. In my work, I have endeavored to derive legitimacy from the practices themselves, reserving the task of justification for other purposes.

By showing the way in which legitimacy is established and maintained in a constitutional system like ours, I hoped to derive solutions to a number of classical questions, all of which, I believe, are at bottom questions about legitimacy and legitimation. …

The "Constitutionalization" Of The Un Security System, Matthias J. Herdegen

Vanderbilt Journal of Transnational Law

The considerable activism displayed by the Security Council over the last years and its dynamic application of the powers under Chapter VII of the UN Charter recently have inspired concern for the institutional balance within the United Nations and the quest for justiciable restraints upon the Council. Such concern underlines a "constitutional" approach to the United Nations framework: the Charter is conceived as a kind of constitution for the community of states with the International Court of Justice as the ultimate guardian of its legality vis-a-vis the Council. Such a "constitutional" approach should be viewed with caution. The scrutiny of …

The Imperial Presidency's New Vestments, A. Michael Froomkin

Articles

No abstract provided.

Rethinking Rawls' Theory Of Liberty And Rights, James W. Nickel

Articles

No abstract provided.

Public Forum Doctrine And The Perils Of Categorical Thinking: Lessons From Lamb's Chapel, Rosemary C. Salomone

Faculty Publications

(Excerpt)

In recent years, the intersection of the Religion and Speech Clauses of the First Amendment has become increasingly controversial particularly in the context of public schooling. Religious group meetings, the distribution of religious literature, the discussion of religious themes, and the recitation of prayers at graduation ceremonies have all forced the courts to weigh and re-weigh the right to individual speech against the responsibility of the state to stay within the bounds of Establishment Clause doctrine. Several legal and political factors have fueled this debate. Although the Supreme Court has reaffirmed on several occasions the unconstitutionality of organized prayer …

Overbroad Civil Forfeiture Statutes Are Unconstitutionally Vague, Deborah Duseau, David Schoenbrod

Articles & Chapters

No abstract provided.

Constitutional Law And International Law In The United States Of America, Lung-Chu Chen

Articles & Chapters

No abstract provided.

State Constitutional Protection Of Children With Aids And The Right To A Public Education, Jeffrey M. Croasdell

Cleveland State Law Review

The purpose of this article is to examine the problem that the American public school system is facing with respect to children with AIDS. In addition, this paper will examine how the courts are analyzing this issue and show why the current trend of analysis is weaker than it should be. Finally, this paper will look at how state constitutions are more frequently being used to protect individual rights and how the state constitutions could be used to protect the right of children with AIDS to free public education.

Constitutional Law—Miranda Comes Out From Under A Stone: In Withrow V. Williams, The Supreme Court Declines To Extend The Rule From Stone V. Powell To Preclude Federal Courts From Hearing A State Prisoner's Habeas Corpus Petition Based On An Alleged Violation Of The Prisoner's Miranda Rights, Marcus N. Bozeman

University of Arkansas at Little Rock Law Review

No abstract provided.