Law and Society Commons^™

The State-Created Danger Doctrine, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Court Of Appeals Of New York - Cubas V. Martinez, Gregory Gillen

Touro Law Review

No abstract provided.

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

All Faculty Scholarship

Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech …

Globally Speaking - Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta E. Hernández-Truyol

UF Law Faculty Publications

Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States’ First Amendment provides an early historical protection of speech—a safeguard now embraced around the world. The extent of this protection, however, varies among states.

The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the …

Of Secrecy And Punishment, Lauren Sudeall Lucas

Faculty Publications By Year

No abstract provided.

Religious Institutions, Liberal States, And The Political Architecture Of Overlapping Spheres, Mark D. Rosen

All Faculty Scholarship

No abstract provided.

A Primer On Hobby Lobby: For-Profit Corporate Entities' Challenge To The Hhs Mandate, Free Exercise Rights, Rfra's Scope, And The Nondelegation Doctrine, Terri R. Day, Leticia M. Diaz, Danielle Weatherby

Faculty Scholarship

No abstract provided.

Democratic Capital: A Voting Rights Surge In Washington Could Strengthen The Constitution For Everyone, Jamin B. Raskin

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Is Nigeria A Secular State? Law, Human Rights And Religion In Context, Osita Nnamani Ogbu

The Transnational Human Rights Review

Nigeria is a multi-ethnic and multi-religious state. The two major religions in the country are Islam and Christianity. Adherents of these two major religions take divergent positions on the question of the secularity of the Nigerian state. While most Christians argue for separation of the Nigerian state from religion, most Muslims advocate the fusion of religion, the state and the law. To many of them, the Sharia ought to govern the totality of the life of a Muslim from cradle to grave. For instance, the Governor of the Central Bank of Nigeria, Alhaji Sanusi Lamido Sanusi, maintained that any call …

The Jury And Participatory Democracy, Alexandra Lahav

Faculty Articles and Papers

Citizens directly participate in the civil justice system in three ways. They can be sued, they can sue another, and they can serve on a jury. Beyond that involvement, the court system is peopled by professionals: judges, lawyers, clerks, and administrators. This Essay considers the reasons our society might want citizens to directly participate as adjudicators in the third branch.

From Third Parties To Parents: The Case Of Lesbian Couples And Their Children, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Ninth Circuit’S Treatment Of Sexual Orientation: Defining “Rational Basis Review With Bite”, Ian C. Bartrum

Scholarly Works

When the Ninth Circuit handed down Witt v. Department of the Air Force, President Obama and then-Solicitor General Kagan declined to take an appeal to the Supreme Court. At the time, it seemed that most advocates of “Don’t Ask, Don’t Tell” believed that the administration made that decision because it was afraid the Supreme Court would reverse the Ninth Circuit. If that fear was perhaps well-founded in 2009, it is certainly less so now. In the wake of SmithKline Beecham Corp. v. Abbott Laboratories, as well as recent District Court decisions, opponents of federal constitutional protection for gay people …

The "Majestic Equality" Of The Law: Why Constitutional Strategies Do Not Produce Equality, Harry Arthurs

All Papers

Paper Presented at a workshop on Equality, at the Institute for Advanced Studies, Nantes, France, in June, 2014. Two epidemiological studies — the Whitehall Studies of 1967 and 1988 — famously demonstrated that socio-economic status is a primary determinant of health outcomes. By locating a large cohort of British civil servants on a social-class gradient, researchers were able to show that individuals at successively lower levels on that gradient experienced diminishing prospects of good health and longevity. This conclusion was complemented by subsequent studies that concluded that degrees of inequality in a society — rather than absolute levels of wealth …

The First Thing We Do, Jorge R. Roig

Scholarly Works

There is currently a concerted effort to dumb down America. In the midst of this, the American Bar Association’s Council of the Section on Legal Education and Admissions to the Bar recently agreed to propose that tenure for law professors be eliminated as a requirement for accreditation of law schools. This article analyzes the arguments for and against tenure in legal academia, and concludes that the main proposed justifications for eliminating tenure are highly questionable, at best. A lawyer is more than a legal technocrat. Lawyers are policy makers and public defenders. They are prosecutors and activists. And the development …

¿Con La Misma Vara? Los Altibajos De La Igual Protección De Las Leyes En Las Opiniones Del Juez Federico Hernández Denton, Jorge R. Roig

Scholarly Works

La carrera del juez presidente Federico Hernández Denton como juez del Tribunal Supremo de Puerto Rico abarca cuatro distintas décadas durante las cuales la sociedad puertorriqueña ha experimentado dramáticos cambios. Desde los intentos por eliminar el hostigamiento sexual y la violencia doméstica hasta el desarrollo de los derechos civiles de los individuos y las parejas homosexuales; desde el cierre de las urbanizaciones adineradas y el enclaustre de la clase media hasta los despidos masivos en el gobierno y la constitucionalización de las escoltas de los ex gobernadores; los cambios experimentados por los puertorriqueños no nos han tocado a todos por …

Aiding The Enemy Or Promoting Democracy? Defining The Rights Of Journalists And Whistleblowers To Disclose National Security Information, Candice M. Kines

West Virginia Law Review

No abstract provided.

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, …

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

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 …

Speech As A Weapon: Planned Parenthood V. American Coalition Of Life Activists And The Need For A Reasonable Listener Standard, Alex J. Berkman

Touro Law Review

No abstract provided.

Led Blindly: One Circuit's Struggle To Faithfully Apply The U.S. Supreme Court's Religious Symbols Constitutional Analysis, William M. Janssen

West Virginia Law Review

No abstract provided.

Abortion And Disgust, Courtney Megan Cahill

Scholarly Publications

This Article uses disgust theory — defined as the insights on disgust by psychologists and social scientists — to critique disgust’s role in abortion lawmaking. Its starting point is a series of developments that independently highlight and call into question the relationship between abortion and disgust. First, the Supreme Court introduced disgust as a valid basis for abortion regulation in its 2007 case Gonzales v. Carhart. Second, psychologists have recently discovered a sufficiently strong association between individual disgust sensitivity and abortion opposition to suggest that disgust might drive that opposition. They have also discovered that “abortion disgust” appears to be …

Social Movements As Constituent Power: The Italian Struggle For The Commons, Saki Bailey, Ugo Mattei

Indiana Journal of Global Legal Studies

The Italian commons (beni comuni) movement is a powerful example of the way in which social movements are emerging as the new pouvoir constituant serving not only to enforce the protections and guarantees of national constitutions but also, in the context of the declining power of the nation-state, as a counter hegemonic force against the neoliberal economic constitutionalism of the international economic institutions. The common goods social movement in Italy was born out of the concerted action of a number of civil society groups combatting neoliberal privatizations. This commons movement, as will be argued in this paper, is an instance …

Occupy The System! Societal Constitutionalism And Transnational Corporate Accounting, Moritz Renner

Indiana Journal of Global Legal Studies

Today's most pressing constitutional question is posed by a global economic system whose expansive tendencies seem no longer controllable. In addressing this question, the theory of Societal Constitutionalism apparently shifts established ideological coordinates by developing a theory of the self-constitutionalization of social spheres. It seeks to combine the virtues of grassroots democracy with the sophistication of systemic social theory. Thus, its normative claim can be formulated as an oxymoron: "Occupy the System!" The claim is an oxymoron because it points to the apparent impossibility of critical social theory in a functionally differentiated society: How can a functional system such as …

Collective Action Federalism And Its Discontents, Neil S. Siegel

Faculty Scholarship

An increasing number of scholars argue that the Commerce Clause is best read in light of the collective action problems that the nation faced under the Articles of Confederation. The work of these “collective action theorists” is reflected in Justice Ginsburg’s opinion in National Federation of Independent Business v. Sebelius. Writing for four Justices, she stressed the “collective-action impasse” at the state level to which the Affordable Care Act responds.

In its purest form, a collective action approach maintains that the existence of a significant problem of collective action facing two or more states is both necessary and sufficient for …

Plea Bargaining And The Right To Counsel At Bail Hearings, Charlie Gerstein

Michigan Law Review

A couple million indigent defendants in this country face bail hearings each year and most of them do so without court-appointed lawyers. In two recent companion cases, Lafler v. Cooper and Missouri v. Frye, the Supreme Court held that the loss of a favorable plea bargain can satisfy the prejudice prong of an ineffective assistance of counsel claim. If the Constitution requires effective assistance of counsel to protect plea bargains, it requires the presence of counsel at proceedings that have the capacity to prejudice those bargains. Pretrial detention has the capacity to prejudice a plea bargain because a defendant held …

Judges In The Executive Branch And Judges In The Judicial Branch: Similar, Yet Distinct, Thomas G. Welshko

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Panel Discussion On Independence And The Federal Alj, Arthur Fried, Ronald G. Bernoski

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Toward Heightening Impartiality In Social Security Agency Proceedings Involving Administrative Law Judges , Victor G. Rosenblum

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Similarities And Differences Between Judges In The Judicial Branch And The Executive Branch: The Further Evolution Of Executive Adjudications Under The Administrative Central Panel, Christopher B. Mcneil

Journal of the National Association of Administrative Law Judiciary

No abstract provided.