Law and Society Commons^™

Legal Implications Of Substance Abuse Testing In The Workplace, Michael S. Cecere, Phillip B. Rosen

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Benign Sex Discrimination Revisited: Constitutional And Moral Issues In Banning Sex-Selection Abortion , George Schedler

Pepperdine Law Review

No abstract provided.

Thompson V. Oklahoma: Debating The Constitutionality Of Juvenile Executions, Susan M. Simmons

Pepperdine Law Review

No abstract provided.

Coy V. Iowa: A Constitutional Right Of Intimidation, John A. Mayers

Pepperdine Law Review

No abstract provided.

United States V. Kozminski: On The Threshold Of Involuntary Servitude , Kenneth T. Koonce Jr.

Pepperdine Law Review

No abstract provided.

Mandatory Pro Bono: The Path To Equal Justice, John R. Desteiguer

Pepperdine Law Review

No abstract provided.

Juror Journalism: Are Profit Motives Replacing Civic Duty?, Brent K. Ashby

Pepperdine Law Review

No abstract provided.

Municipal And State Sanctuary Declarations: Innocuous Symbolism Or Improper Dictates?, Jorge L. Carro

Pepperdine Law Review

No abstract provided.

Avoiding Religious Apartheid: Affording Equal Treatment For Student-Initiated Religious Expression In Public Schools , John W. Whitehead

Pepperdine Law Review

No abstract provided.

Thornburgh V. Abbott: Slamming The Prison Gates On Constitutional Rights, Megan M. Mcdonald

Pepperdine Law Review

No abstract provided.

The Unwed Father's Custody Claim In California: When Does The Parental Preference Doctrine Apply?, Jeffrey S. Boyd

Pepperdine Law Review

No abstract provided.

Constitutional Restraints On The Doctrine Of Punitive Damages, Theodore B. Olson, Theodore J. Boutrous Jr.

Pepperdine Law Review

No abstract provided.

National Treasury Employees Union V. Von Raab—Will The War Against Drugs Abrogate Constitutional Guarantees?, Alyssa C. Westover

Pepperdine Law Review

No abstract provided.

Texas V. Johnson: The Constitutional Protection Of Flag Desecration, Patricia Lofton

Pepperdine Law Review

No abstract provided.

The Constitutionality Of The Federal Sentencing Reform Act After Mistretta V. United States, Charles R. Eskridge Iii

Pepperdine Law Review

No abstract provided.

Seeking An Islamic Reflective Equilibrium: A Response To Abdullahi A. An-Na'im’S Complementary, Not Competing, Claims Of Law And Religion: An Islamic Perspective, Mohammad H. Fadel

Pepperdine Law Review

Professor 'Abdallahi Na'im argues that there can be no conflict between religion and the state because religion and politics are part of different normative orders, and thus it is not conceivable that a conflict can arise between them. I argue that Na'im's solution to the problematic relationship of religion to state shares the same conceptual terrain as separationism in American constitutional law, a position which has grown increasingly untenable as a result of the increasing religious pluralism in the United States and the expansion of the government into areas of life in a manner that would have been inconceivable even …

The Mighty Work Of Making Nations Happy: A Response To James Davison Hunter, Patrick Mckinley Brennan

Pepperdine Law Review

This article is an invited response to James Davison Hunter’s much-discussed book To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World (Oxford University Press, 2010). Hunter, a sociologist at UVA and a believing Protestant, claims that law’s capacity to contribute to social change is “mostly illusory” and that Christians, therefore, should practice “faithful presence” in the public square rather than seek to influence law directly. My response is that it is, in fact, law’s stunning ability to alter and limit available choices that makes it an object of deservedly fierce contest. The wild …

The Right To Refuse Life Sustaining Medical Treatment And The Noncompetent Nonterminally Ill Patient: An Analysis Of Abridgment And Anarchy, Elizabeth Helene Adamson

Pepperdine Law Review

No abstract provided.

A First Amendment Right Of Access To A Juror's Identity: Toward A Fuller Understanding Of The Jury's Deliberative Process , Robert Lloyd Raskopf

Pepperdine Law Review

No abstract provided.

They Saw A Protest: Cognitive Illiberalism And The Speech-Conduct Distinction, Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans, Jeffrey J. Rachlinski, Jeffrey J. Rachlinski, Jeffrey J. Rachlinski, Jeffrey J. Rachlinski

Articles

“Cultural cognition” refers to the unconscious influence of individuals’ group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected “speech” from unprotected “conduct.” Study subjects viewed a video of a political demonstration. Half the subjects believed that the demonstrators were protesting abortion outside of an abortion clinic, and the other half that the demonstrators were protesting the military’s “don’t ask, don’t tell” policy outside a campus recruitment facility. Subjects of opposing cultural outlooks who were assigned to the same experimental condition …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

All Faculty Scholarship

Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews

Faculty Working Papers

This article makes an originalist argument in defense of the Supreme Court's holding in Loving v. Virginia that antimiscegenation laws are unconstitutional. This article builds on past work by Professor Michael McConnell defending Brown v. Board of Education on originalist grounds and by Professor Calabresi defending strict scrutiny for gender classifications on originalist grounds. Professor Calabresi's work in this area was defended and praise recently by Slate magazine online. The article shows that Loving v. Virginia is defensible using the public meaning originalism advocated for by Justices Antonin Scalia and Clarence Thomas. This article shows that the issue in Loving …

Dangerous People Or Dangerous Weapons: Access To Firearms For Persons With Mental Illness, Lawrence O. Gostin, Katherine L. Record

Georgetown Law Faculty Publications and Other Works

The recent attempted assassination of Rep. Gabrielle Giffords has once again focused the nation’s attention on the danger of the wide availability of firearms.  The Supreme Court has ruled that gun restrictions may only be imposed on those deemed “prohibited persons” under the Gun Control Act of 1968.  Although some are easily identifiable (e.g., children, convicted felons), one widely inclusive group is not – the mentally ill.

The current system designed to bar the mentally ill from purchasing or possessing firearms is ineffectual due to a lack of reporting and the existence of loopholes.  What’s more, no state has developed …

Lochner, Lawrence, And Liberty, Joseph F. Morrissey

Georgia State University Law Review

Many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation.

Advocates have made a wide variety of arguments attacking such restrictions. Scholars and litigants frequently argue that such acts violate constitutional guarantees of equal protection or invade a constitutional right to privacy. However, such arguments are often defeated by counter arguments presented with religious, moral, and even emotional fervor.

This article presents and defends a new analytical framework based on liberty of contract to advance gay rights. …

What Will We Lose If The Trial Vanishes?, Robert P. Burns

Faculty Working Papers

The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.

Cracks In The Wall, A Bulge Under The Carpet: The Singular Story Of Religion, Evolution, And The U.S. Constitution, Susan Haack

Articles

No abstract provided.

The Rule Of Law As A Law Of Standards, Jamal Greene

Faculty Scholarship

Justice Antonin Scalia titled his 1989 Oliver Wendell Holmes Lecture at Harvard Law School The Rule of Law as a Law of Rules. The lecture posed the sort of dichotomy that has become a familiar feature of Justice Scalia's jurisprudence and of his general approach to judging. On one hand are judges who recognize that the only legitimate means by which they may adjudicate cases in a democracy is to seek to do so through rules of general application. On the other hand are those judges who generally prefer to adopt an all-things considered balancing approach to adjudication. This latter …

“Equal Citizenship Stature”: Justice Ginsburg’S Constitutional Vision, Neil S. Siegel

Faculty Scholarship

In this essay, Professor Siegel examines the nature and function of constitutional visions in the American constitutional order. He argues that Associate Justice Ruth Bader Ginsburg possesses such a vision and that her vision is defined by her oft-stated commitment to “full human stature,” to “equal citizenship stature.” He then defends Justice Ginsburg’s characteristically incremental and moderate approach to realizing her vision. He does so in part by establishing that President Barack Obama articulated a similar vision and approach in his Philadelphia speech on American race relations and illustrated its capacity to succeed during the 2008 presidential election.

Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta

St. Mary's Law Journal

The United States Supreme Court has never explained the Eighth Amendment’s impact in noncapital cases involving a mentally retarded or brain-injured defendant. The Court has not provided guidance to legislatures or lower courts concerning the acceptable balancing of aggravating and mitigating factors and the role that mitigating factors must play in the sentencing decision. A definitive gap exists between the protections afforded to a criminal defendant facing a life sentence as opposed to those confronted with the death penalty. The Court requires sentencing procedures to consider aggravating and mitigating factors, including mental retardation and brain damage, when imposing a death …

The Missing Jurisprudence Of The Legislated Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Does the fourteenth Amendment and its Equal Protection Clause — the promise that "no state shall deny equal protection of the laws" — have any relevance to the progressive project of reducing economic inequality in various spheres of life or, more modestly, of ameliorating the multiple vulnerabilities of this country's poor people? The short answer, I believe, is, it depends. It will depend, in 2020, just as it depends now, on what we mean by the Constitution we are expounding: the Constitution as read and interpreted by courts — the adjudicated Constitution — or what I propose to call the …