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Full-Text Articles in Constitutional Law

The Original Meaning Of “Religion” In The First Amendment: A Test Case Of Originalism’S Utilization Of Corpus Linguistics, Lee J. Strang Aug 2017

The Original Meaning Of “Religion” In The First Amendment: A Test Case Of Originalism’S Utilization Of Corpus Linguistics, Lee J. Strang

BYU Law Review

Originalism is the theory of constitutional interpretation that identifies the constitutional text’s public meaning when it was ratified as its authoritative meaning. Corpus linguistics is the study of word-use regularities and patterns, primarily in written texts. In a prior article, I argued that originalists should utilize corpus linguistics to facilitate originalism’s capacity to accurately uncover this original meaning. However, my arguments there were theoretical; this Essay provides a “test case” of corpus linguistics’ capacity to increase originalism’s methodological accuracy. This Essay accomplishes three modest goals. First, it provides a practical example of the application of corpus linguistics to originalism. This …

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The Power Of Words: A Comment On Hamann And Vogel’S Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany, Mark C. Suchman Aug 2017

The Power Of Words: A Comment On Hamann And Vogel’S Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany, Mark C. Suchman

BYU Law Review

By offering an international and interdisciplinary point of comparison, Hamann and Vogel demonstrate that current American forays into corpus-based legal scholarship reflect only a small sliver of the full range of possibilities for such research. This Comment considers several key branching points that may lie ahead, as the nascent literature begins to mature. In particular, the Comment examines two vexing ambiguities in the corpus-linguistic agenda: the first centers on the ambiguous meaning of legal “empiricism”; the second, on the ambiguous relationship between words and actions. To achieve its full potential, legal corpus linguistics will need to move beyond mere description, …

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Newsroom: The Violence In Charlottesville 08-14-2017, Michael J. Yelnosky Aug 2017

Newsroom: The Violence In Charlottesville 08-14-2017, Michael J. Yelnosky

Life of the Law School (1993- )

No abstract provided.

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Brief Of Scholars Of The History And Original Meaning Of The Fourth Amendment As Amici Curiae In Support Of Petitioner, Margaret Hu Aug 2017

Brief Of Scholars Of The History And Original Meaning Of The Fourth Amendment As Amici Curiae In Support Of Petitioner, Margaret Hu

Briefs

No abstract provided.

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Can Courts Save Us From Unconstitutional Government Conduct?, John M. Greabe Aug 2017

Can Courts Save Us From Unconstitutional Government Conduct?, John M. Greabe

Law Faculty Scholarship

[Excerpt] "We are living in a troubled time. Across the political spectrum, there is a great deal of concern that government officials have been derelict in honoring their oaths to support and defend the Constitution."

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August 13, 2017: Why Go To Mars?, Bruce Ledewitz Aug 2017

August 13, 2017: Why Go To Mars?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why Go to Mars?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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Rwu First Amendment Blog: Jared A. Goldstein's Blog: Ri's Conversion Therapy Ban Protects Lgbtq Youth And It's Constitutional 08-09-2017, Jared A. Goldstein Aug 2017

Rwu First Amendment Blog: Jared A. Goldstein's Blog: Ri's Conversion Therapy Ban Protects Lgbtq Youth And It's Constitutional 08-09-2017, Jared A. Goldstein

Law School Blogs

No abstract provided.

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Quintinsky V. Knesset (Summary), Noam Sohlberg, Miriam Naor, Neal Hendel, Esther Hayut, Meni Mazuz Aug 2017

Quintinsky V. Knesset (Summary), Noam Sohlberg, Miriam Naor, Neal Hendel, Esther Hayut, Meni Mazuz

Translated Opinions

The petitions challenged the Multiple Apartments Tax Arrangement (hereinafter: the Tax Arrangement) in Chapter XII of the Economic Efficiency (Legislative Amendments for the Implementation of the Economic Policy for Budget Years 2017 and 2018) Law, 5777-2016 (hereinafter: the Economic Efficiency Law), which imposed a designated tax upon owners of multiple apartments whose aggregate rights in the apartments was 249% or more. Under the Tax Arrangement, a holder of apartments to the said extent would be subject to a tax of 1% of “the determining amount” for each apartment held, exclusive of two apartments as he may choose. The Petitioners argued …

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Promises Of Law: The Unlawful Dispossession Of Japanese Canadians, Eric M. Adams, Jordan Stanger-Ross Aug 2017

Promises Of Law: The Unlawful Dispossession Of Japanese Canadians, Eric M. Adams, Jordan Stanger-Ross

Osgoode Hall Law Journal

This article is about the origins, betrayal, and litigation of a promise of law. In 1942, while it ordered the internment of over twenty-one thousand Canadians of Japanese descent, the Canadian government enacted orders in council authorizing the Custodian of Enemy Property to seize all real and personal property owned by Japanese Canadians living within coastal British Columbia. Demands from the Japanese-Canadian community and concern from within the corridors of government resulted in amendments to those orders stipulating that the Custodian held that property as a “protective” trust and would return it to Japanese Canadians at the conclusion of the …

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Musings And Silences Of Chief Justice William Osgoode: Digest Marginalia About The Reception Of Imperial Law, G. Blaine Baker Aug 2017

Musings And Silences Of Chief Justice William Osgoode: Digest Marginalia About The Reception Of Imperial Law, G. Blaine Baker

Osgoode Hall Law Journal

This article focuses on musings and silences in the margins of Canadian Chief Justice William Osgoode’s late-eighteenth-century law library, to understand the role he assigned to Westminster-based imperial law in the transmission of British justice to the colonies. It concludes that this role was limited, mostly by Osgoode’s greater commitment of time and energy to legislative and executive branches of government than to the judiciary, and by his sometimes cavalier impatience with English courts and legal commentators.

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Arad Pinkas V. Committee For Approval Of Embryo Carrying Agreements Under The Embryo Carrying Agreements (Agreement Approval & Status Of The Newborn Child) Law, 5756-1996, Salim Joubran, Miriam Naor, Elyakim Rubinstein, Esther Hayut, Hanan Melcer Aug 2017

Arad Pinkas V. Committee For Approval Of Embryo Carrying Agreements Under The Embryo Carrying Agreements (Agreement Approval & Status Of The Newborn Child) Law, 5756-1996, Salim Joubran, Miriam Naor, Elyakim Rubinstein, Esther Hayut, Hanan Melcer

Translated Opinions

This petition seeks to increase access to the surrogacy process in Israel, which is in major part regulated in the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) Law, 5756-1996 (hereinafter: Agreements Law), such that it will also apply to single-sex couples and to single people, either with or without a genetic link to the newborn. On July 17, 2017, the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017, passed its first reading in the Knesset. Under this Bill, the circle of women eligible for the surrogacy process in …

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Looking Beyond The Veil, Immanuel Chioco Aug 2017

Looking Beyond The Veil, Immanuel Chioco

Indiana Journal of Global Legal Studies

From establishments of state religions to bans on headscarves, religious minorities experience discrimination. In the post-September 11, 2001, world, Muslim women in particular have faced harsh forms of discrimination and stereotyping; this stigma has only been worsened with the recent influx of immigrants into Europe. With increasing numbers of immigrants, some countries have attempted to assimilate minority religious groups by banning the religious use of headscarves. EEOC v. Abercrombie & Fitch Stores, Inc., a case from the United States Supreme Court, was a break for Muslim women. This case, which involved a Muslim plaintiff, held that religious practices are to …

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Alternatives To Immigration Detention, Fatma E. Marouf Aug 2017

Alternatives To Immigration Detention, Fatma E. Marouf

Cardozo Law Review

The United States places over 440,000 people each year in immigration detention, far more than any other country in the world. This Article argues that there are compelling humanitarian and financial reasons to utilize more alternatives to detention. It examines the strengths and limitations of existing alternatives, including the need to develop more community-based case management programs and to rely less on electronic monitoring. The Article then sets forth several legal arguments under the Constitution, Rehabilitation Act, and international human rights law for requiring greater consideration of alternatives to detention.

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Prohibiting Child- Parent Visitation After Parental Rights Are Terminated By Trial In New York: A Denial Of Parental Due Process, Rachel Turetsky Aug 2017

Prohibiting Child- Parent Visitation After Parental Rights Are Terminated By Trial In New York: A Denial Of Parental Due Process, Rachel Turetsky

Cardozo Law Review

The note argues that New York's current statutory framework denying posttermination contact for parents after a trial termination is constitutionally and policy-deficient. It advocates for a legislative amendment to permit courts to order posttermination contact or communication when it serves the best interests of the child, aligning with due process rights and the majority of U.S. jurisdictions.

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Striking A Balance Between The Paramount Importance Of The Safety Of Children And Constitutionally-Imposed Limits On State Power, Lindsey Lazopoulos Friedman Aug 2017

Striking A Balance Between The Paramount Importance Of The Safety Of Children And Constitutionally-Imposed Limits On State Power, Lindsey Lazopoulos Friedman

University of Miami Law Review

No abstract provided.

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Quasi-Constitutional Amendments, Richard Albert Aug 2017

Quasi-Constitutional Amendments, Richard Albert

Buffalo Law Review

No abstract provided.

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Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick Aug 2017

Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick

Faculty Publications

Commentators have expressed concerns that litigants are invoking the First Amendment's Free Speech Clause strategically, in order to compensate for the weakness or futility of other constitutional claims. The phenomenon has been given a label- "opportunism "-and scholars have examined some of its causes and consequences. This Article takes a closer and somewhat skeptical look at the concept offree speech "opportunism." It imagines that the Free Speech Clause will be invoked in challenges to laws or policies that restrict public restroom use based on a person's gender. Would such challenges be "opportunistic, " as the term has been defined? What …

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July 31, 2017: On Liberal Arrogance, Bruce Ledewitz Jul 2017

July 31, 2017: On Liberal Arrogance, Bruce Ledewitz

Hallowed Secularism

Blog post, “On Liberal Arrogance“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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Sound Principles, Undesirable Outcomes: Justice Scalia's Paradoxical Eighth Amendment Jurisprudence, Mirko Bagaric, Sandeep Gopalan Jul 2017

Sound Principles, Undesirable Outcomes: Justice Scalia's Paradoxical Eighth Amendment Jurisprudence, Mirko Bagaric, Sandeep Gopalan

Akron Law Review

Justice Scalia is renowned for his conservative stance on the Eighth Amendment and prisoners’ rights. Justice Scalia held that the Eighth Amendment incorporates no proportionality requirement of any nature regarding the type and duration of punishment which the state can inflict on criminal offenders. Justice Scalia has also been labelled as “one of the Justices least likely to support a prisoner’s legal claim” and as adopting, because of his originalist orientation, “a restrictive view of the existence of prisoners’ rights.” A closer examination of the seminal judgments in these areas and the jurisprudential nature of the principle of proportionality and …

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Justice Scalia As Neither Friend Nor Foe To Criminal Defendants, Tung Yin Jul 2017

Justice Scalia As Neither Friend Nor Foe To Criminal Defendants, Tung Yin

Akron Law Review

At first glance, Justice Scalia may appear to have been something of a “friend” to criminal defendants, as he authored a number of opinions ruling against law enforcement. However, his opinions reflect his fidelity to his constitutional vision of originalism rather than an intent to favor criminal defendants. Nevertheless, these cases are often offered as legitimate examples of how he did not have a purely results-oriented approach to deciding criminal procedure issues. Yet, a closer examination of Justice Scalia’s “defendant-favorable” opinions suggests that the results often have an air of unreality to them. In practice, there is no way for …

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Originalism And The Criminal Law: Vindicating Justice Scalia's Jurisprudence - And The Constitution, Adam Lamparello, Charles E. Maclean Jul 2017

Originalism And The Criminal Law: Vindicating Justice Scalia's Jurisprudence - And The Constitution, Adam Lamparello, Charles E. Maclean

Akron Law Review

Justice Scalia was not perfect—no one is—but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective—namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution—that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.” Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. …

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The Death Penalty And Justice Scalia's Lines, J. Richard Broughton Jul 2017

The Death Penalty And Justice Scalia's Lines, J. Richard Broughton

Akron Law Review

In Justice Scalia’s lone dissenting opinion in Morrison v. Olson, he lamented that, after the Court had upheld a law that he believed violated the separation of powers, “there are now no lines.” Lines were of critical importance to Justice Scalia – in law and in life – and informed much of his work on criminal law issues (Morrison, after all, was a case about the nature of federal prosecutorial authority). In the area of capital punishment, in particular, Justice Scalia saw clear lines that the Court should not cross. He believed that the Constitution contemplates the …

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Justice Scalia's Eighth Amendment Jurisprudence: An Unabashed Foe Of Criminal Defendants, Michael Vitiello Jul 2017

Justice Scalia's Eighth Amendment Jurisprudence: An Unabashed Foe Of Criminal Defendants, Michael Vitiello

Akron Law Review

Justice Scalia’s death has already produced a host of commentary on his career. Depending on the issue, Justice Scalia’s legacy is quite complicated. Justice Scalia’s commitment to originalism explains at least some of his pro-defendant positions. Some of his supporters point to such examples to support a claim that Justice Scalia was principled in his application of his jurisprudential philosophy. However, in one area, Justice Scalia was an unabashed foe of criminal defendants: his Eighth Amendment jurisprudential dealing with terms of imprisonment. There, based on his reading of the historical record, he argued that the Eighth Amendment’s prohibition against cruel …

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July 25, 2017: A Scandal At The Boy Scout Jamboree, Bruce Ledewitz Jul 2017

July 25, 2017: A Scandal At The Boy Scout Jamboree, Bruce Ledewitz

Hallowed Secularism

Blog post, “A Scandal at the Boy Scout Jamboree“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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Religion And Gay Rights Need Not Be At Loggerheads, Bruce Ledewitz Jul 2017

Religion And Gay Rights Need Not Be At Loggerheads, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

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July 23, 2017: Sunday Op-Ed In The Post-Gazette, Bruce Ledewitz Jul 2017

July 23, 2017: Sunday Op-Ed In The Post-Gazette, Bruce Ledewitz

Hallowed Secularism

Blog post, “Sunday op-ed in the Post-Gazette“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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A Diverse Student Body Without Student Bodies?: Online Classrooms And Affirmative Action, Ryan H. Nelson Jul 2017

A Diverse Student Body Without Student Bodies?: Online Classrooms And Affirmative Action, Ryan H. Nelson

Pepperdine Law Review

America’s public universities engage students in myriad classroom environments that range from traditional, entirely-in-person classroom environments to entirely-online, virtual classrooms, with every shade of grey in between. These varied learning environments pose a fascinating question with respect to the ways such universities use affirmative action in admissions. In Grutter v. Bollinger, the United States Supreme Court held that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” Indeed, student body diversity remains one of the few “compelling interests” that the Court has held satisfies the constitutional imperative that the “government may …

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July 20, 2017: Are Trump Supporters Moral Heroes On Healthcare?, Bruce Ledewitz Jul 2017

July 20, 2017: Are Trump Supporters Moral Heroes On Healthcare?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Are Trump Supporters Moral Heroes on Healthcare?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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A Constitutional And Efficacious Analysis Of Affirmative Action Policies, Jeff Longust Jul 2017

A Constitutional And Efficacious Analysis Of Affirmative Action Policies, Jeff Longust

Pepperdine Policy Review

After several Supreme Court cases, university admissions processes, and state/federal policies, affirmative action programs are under several layers of scrutiny. This paper explores how court precedent and research studies have both shaped policies and raised substantive questions about whether or not these programs are effective and equitable.

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The Origins And Boundaries Of Executive Privilege, John M. Greabe Jul 2017

The Origins And Boundaries Of Executive Privilege, John M. Greabe

Law Faculty Scholarship

[Excerpt] "When the president or persons working with the president are under investigation . . . the doctrine of executive privilege -which entitles the president to keep confidential certain communications to and from his advisers -inevitably becomes relevant."

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