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Articles 31 - 60 of 1053
Full-Text Articles in Constitutional Law
Government Nonendorsement, Nelson Tebbe
Government Nonendorsement, Nelson Tebbe
Cornell Law Faculty Publications
What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is no …
Ownership Without Citizenship: The Creation Of Noncitizen Property Rights, Allison Brownell Tirres
Ownership Without Citizenship: The Creation Of Noncitizen Property Rights, Allison Brownell Tirres
Michigan Journal of Race and Law
At the nation’s founding, the common law of property defined ownership as an incident of citizenship. Noncitizens were unable lawfully to hold, devise, or inherit property. This doctrine eroded during the course of the eighteenth and nineteenth centuries, but few scholars have examined its demise or the concommittant rise of property rights for foreigners. This Article is the first sustained treatment of the creation of property rights for noncitizens in American law. It uncovers two key sources for the rights that emerged during the nineteenth century: federal territorial law, which allowed for alien property ownership and alien suffrage, and state …
Fisher V. University Of Texas: Who Put The Holes In “Holistic”?, Rodney A. Smolla
Fisher V. University Of Texas: Who Put The Holes In “Holistic”?, Rodney A. Smolla
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Legislative Diplomacy, Ryan M. Scoville
Legislative Diplomacy, Ryan M. Scoville
Michigan Law Review
A traditional view in legal scholarship holds that the U.S. Constitution assigns the president exclusive power to carry on official diplomatic communications with foreign governments. But in fact, Congress and its members routinely engage in communications of their own. Congress, for example, receives heads of state and maintains official contacts with foreign parliaments. And individual members of the House and Senate frequently travel overseas on congressional delegations (“CODELs”) to confer with foreign leaders, investigate problems that arise, promote the interests of the United States and constituents, and even represent the president. Moreover, many of these activities have occurred ever since …
The Legality Of Deliberate Miranda Violations: How Two-Step National Security Interrogations Undermine Miranda And Destabilize Fifth Amendment Protections, Lee Ross Crain
Michigan Law Review
As part of the global “War on Terror,” federal agents intentionally delay issuing Miranda warnings to terrorism suspects during custodial interrogations. They delay the warnings presuming that unwarned suspects will more freely offer vital national security intelligence. After a suspect offers the information he has, agents administer Miranda warnings and attempt to elicit confessions that prosecutors can use at the suspect’s trial. No court has ruled on the constitutionality of this two-step national security interrogation process to determine whether admitting the second, warned confession is allowed under Miranda v. Arizona and its progeny. A fragmented Supreme Court examined two-step interrogations …
The Resilience Of Property, Lynda L. Butler
The Resilience Of Property, Lynda L. Butler
Faculty Publications
Resilience is essential to the ability of property to face transforming social and environmental change. For centuries, property has responded to such change through a dialectical process that identifies emerging disciplinary perspectives and debates conflicting values and norms. This dialectic promotes the resilience of property, allowing it to adapt to changing conditions and needs. Today the mainstream economic theory dominating common law property is progressively being intertwined with constitutionally protected property, undermining its long-term resilience. The coupling of the economic vision of ordinary property with constitutional property embeds the assumptions, choices, and values of the economic theory into both realms …
Factual Precedents, Allison Orr Larsen
Factual Precedents, Allison Orr Larsen
Faculty Publications
Lawyers and judges speak to each other in a language of precedents—decisions from cases that have come before. The most persuasive precedent to cite, of course, is an on-point decision of the U.S. Supreme Court. But Supreme Court opinions are changing. They contain more factual claims about the world than ever before, and those claims are now rich with empirical data. This Supreme Court factfinding is also highly accessible; fast digital research leads directly to factual language in old cases that is perfect for arguments in new ones. An unacknowledged consequence of all this is the rise of what I …
High Federalism: Marijuana Legalization And The Limits Of Federal Power To Regulate States, David S. Schwartz
High Federalism: Marijuana Legalization And The Limits Of Federal Power To Regulate States, David S. Schwartz
Cardozo Law Review
The conflict between state marijuana legalization and the blanket federal marijuana prohibition of the Controlled Substances Act (CSA) has created a federalism crisis in which the duties of state officials to adhere to state or federal law are unclear. Current federalism doctrine cannot even tell us whether or not a local police officer who encounters a person in state-authorized possession of marijuana must arrest the person and seize the marijuana. The two most clearly applicable federalism doctrines - the Tenth Amendment anti-commmandeering doctrine and federal preemption of state law under the Supremacy Clause - offer only unsatisfactory answers. Anti-commandeering doctrine …
Cosmopolitanism In Constitutional Law, Vlad Perju
Cosmopolitanism In Constitutional Law, Vlad Perju
Cardozo Law Review
No abstract provided.
Contextual Expectations Of Privacy, Andrew D. Selbst
Contextual Expectations Of Privacy, Andrew D. Selbst
Cardozo Law Review
Fourth Amendment search jurisprudence is nominally based on a "reasonable expectation of privacy," but actual doctrine is disconnected from society's conception of privacy. Courts rely on various binary distinctions: Is a piece of information secret or not? Was the observed conduct inside or outside? While often convenient, none of these binary distinctions can adequately capture the complicated range of ideas encompassed by "privacy." Privacy theorists have begun to understand that a consideration of social context is essential to a full understanding of privacy. Helen Nissenbaum's theory of contextual integrity, which characterizes a right to privacy as the preservation of expected …
Beyond Bing: The Arthur Rule Lives On As The Touchstone For The New York State Right To Counsel, Adrienne Levy
Beyond Bing: The Arthur Rule Lives On As The Touchstone For The New York State Right To Counsel, Adrienne Levy
Cardozo Law Review
No abstract provided.
November 28, 2013: The Theology Of The Disappearance Of Thanksgiving, Bruce Ledewitz
November 28, 2013: The Theology Of The Disappearance Of Thanksgiving, Bruce Ledewitz
Hallowed Secularism
Blog post, “The Theology of the Disappearance of Thanksgiving“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Dispatches From The Trenches Of America's Great Gun Trust Wars, Lee-Ford Tritt
Dispatches From The Trenches Of America's Great Gun Trust Wars, Lee-Ford Tritt
NULR Online
No abstract provided.
Stretching Religious Liberty, Bruce Ledewitz
Stretching Religious Liberty, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
Using Social Media In Rulemaking: Possibilities And Barriers, Michael E. Herz
Using Social Media In Rulemaking: Possibilities And Barriers, Michael E. Herz
Online Publications
“Web 2.0” is characterized by interaction, collaboration, non-static web sites, use of social media, and creation of user-generated content. In theory, these Web 2.0 tools can be harnessed not only in the private sphere but as tools for an e-topia of citizen engagement and participatory democracy. Notice-and-comment rulemaking is the pre-digital government process that most approached (while still falling far short of) the e-topian vision of public participation in deliberative governance. The notice-and-comment process for federal agency rulemaking has now changed from a paper process to an electronic one. Expectations for this switch were high; many anticipated a revolution that …
November 20, 2013: God Is Not A Supernatural Thing, Bruce Ledewitz
November 20, 2013: God Is Not A Supernatural Thing, Bruce Ledewitz
Hallowed Secularism
Blog post, “God is not a Supernatural Thing“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
November 16, 2013: The Mythical Elements Of The Bible, Bruce Ledewitz
November 16, 2013: The Mythical Elements Of The Bible, Bruce Ledewitz
Hallowed Secularism
Blog post, “The Mythical Elements of the Bible“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
November 13, 2013: Huffington Post Blog Entry On Legislative Prayer, Bruce Ledewitz
November 13, 2013: Huffington Post Blog Entry On Legislative Prayer, Bruce Ledewitz
Hallowed Secularism
Blog post, “Huffington Post Blog Entry on Legislative Prayer“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Why Scalia Should Have Voted To Overturn Doma, Andrew Koppelman
Why Scalia Should Have Voted To Overturn Doma, Andrew Koppelman
NULR Online
No abstract provided.
A Deal Is A Deal: Plea Bargains And Double Jeopardy After Ohio V. Johnson, Philip Chinn
A Deal Is A Deal: Plea Bargains And Double Jeopardy After Ohio V. Johnson, Philip Chinn
Seattle University Law Review
The Double Jeopardy Clause provides that no person will “be subject for the same offence to be twice put in jeopardy of life or limb.” On March 10, 2004, Pedro Cabrera made a statement that cost him fourteen years of his life: he proclaimed his innocence. The court accepted this plea and ordered a finding of guilty with a recommended sentence of six years. However, during an exchange that followed, Mr. Cabrera asserted that he was actually innocent but that he preferred “to take the time” instead of proceeding to trial. The judge then refused to accept Mr. Cabrera’s guilty …
The American Dream: Daca, Dreamers, And Comprehensive Immigration Reform, Heather Fathali
The American Dream: Daca, Dreamers, And Comprehensive Immigration Reform, Heather Fathali
Seattle University Law Review
On June 15, 2012, President Obama made an announcement that changed the lives of millions. Effective immediately, the Obama administration would implement a new program—what would come to be known as Deferred Action for Child-hood Arrivals (DACA)—offering eligible undocumented young people both a two-year respite from the haunting possibility of deportation as well as the eligibility to apply for employment authorization. While millions were elated by the President’s announcement, he also faced harsh criticism. Many claimed that his action exceeded federal statutory limits, exceeded his Executive powers, and usurped congressional authority. Still others, anxious to see comprehensive immigration reform implemented, …
State Session Freeze Laws—Potential Solution Or Unconstitutional Restriction?, Dru Swaim
State Session Freeze Laws—Potential Solution Or Unconstitutional Restriction?, Dru Swaim
Seattle University Law Review
Since the Citizens United decision in 2010 reduced Congress’s ability to constitutionally regulate money in elections, proponents of campaign finance reform have looked for alternative ways to achieve the goals of greater transparency and reduce the amount of money spent in federal elections. In the three years since Citizens United, the amount of money spent in federal campaigns has increased exponentially. In fact, the total amount of money spent in federal elections has nearly doubled since 2000. Citizens United represents a serious blow to the traditional methods used to restrict the amount of money in politics: limitations on the amounts …
The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter
The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter
Seattle University Law Review
By filing a petition for a federal writ of habeas corpus, a prisoner initiates a legal proceeding collateral to the direct appeals process. Federal statutes set forth the procedure and parameters of habeas corpus review. The Antiterrorism and Effective Death Penalty Act (AEDPA) first signed into law by President Clinton in 1996, included significant cut-backs in the availability of federal writs of habeas corpus. This was by congressional design. Yet, despite the dire predictions, for most of the first decade of AEDPA’s reign, the door to habeas relief remained open. More recently, however, the Supreme Court reinterpreted a key portion …
Academic Freedom And Professorial Speech In The Post-Garcetti World, Oren R. Griffin
Academic Freedom And Professorial Speech In The Post-Garcetti World, Oren R. Griffin
Seattle University Law Review
Academic freedom, a coveted feature of higher education, is the concept that faculty should be free to perform their essential functions as professors and scholars without the threat of retaliation or undue administrative influence. The central mission of an academic institution, teach-ing and research, is well served by academic freedom that allows the faculty to conduct its work in the absence of censorship or coercion. In support of this proposition, courts have long held that academic freedom is a special concern of the First Amendment, granting professors and faculty members cherished protections regarding academic speech. In Garcetti v. Ceballos, the …
Mania: The Lives, Literature, And Law Of The Beats, Ronald K.L. Collins, David M. Skover
Mania: The Lives, Literature, And Law Of The Beats, Ronald K.L. Collins, David M. Skover
Seattle University Law Review
The Beats introduced the counter-culture to twentieth century America. They were the first to break away from Eisenhower conformity, from the era of the Man in the Grey Flannel Suit. With them came an infusion of rebel spirit—a spirit that hearkened back to Walt Whitman—in their lives, literature, and law. Their literature spawned a remarkable chapter in American obscenity law. The prosecution of Allen Ginsberg’s epic poem, Howl, was the last of its kind in this nation; and the prosecution of William Burroughs’s Naked Lunch is one of the last times that a novel was charged as obscene. The First …
November 8, 2013: Legislative Prayer, Bruce Ledewitz
November 8, 2013: Legislative Prayer, Bruce Ledewitz
Hallowed Secularism
Blog post, “Legislative Prayer“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Hollingsworth V. Perry: Standing Over Constitutional Rights, Caitlin E. Borgmann
Hollingsworth V. Perry: Standing Over Constitutional Rights, Caitlin E. Borgmann
City University of New York Law Review
No abstract provided.
November 3, 2013: Ronald Dworkin's Confusion, Bruce Ledewitz
November 3, 2013: Ronald Dworkin's Confusion, Bruce Ledewitz
Hallowed Secularism
Blog post, “Ronald Dworkin's Confusion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
A Visual Guide To United States V. Windsor: Doctrinal Origins Of Justice Kennedy's Majority Opinion, Colin Starger
A Visual Guide To United States V. Windsor: Doctrinal Origins Of Justice Kennedy's Majority Opinion, Colin Starger
NULR Online
No abstract provided.