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Articles 331 - 360 of 382
Full-Text Articles in Legal Writing and Research
Good Enough For Government Work: The Interpretation Of Positive Constitutional Rights In State Constitutions, Jeffrey Omar Usman
Good Enough For Government Work: The Interpretation Of Positive Constitutional Rights In State Constitutions, Jeffrey Omar Usman
Law Faculty Scholarship
The United States Supreme Court ruled in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) and reaffirmed in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) that absent conditions of confinement the Due Process Clause imposes no affirmative obligations upon government to protect an individual’s life, liberty, or property. These decisions reflect the Supreme Court’s broader understanding of the United States Constitution as a guarantor of negative rights but devoid of assurance of positive rights. Like the constitutions of many other countries, state constitutions have charted a different course. Unlike their federal counterpart, state …
A Decade Later: Adarand And Croson And The Status Of Minority Preferences In Government Contracting, Lynn Ridgeway Zehrt
A Decade Later: Adarand And Croson And The Status Of Minority Preferences In Government Contracting, Lynn Ridgeway Zehrt
Law Faculty Scholarship
This Article analyzes sixteen decisions in an effort to assist governmental entities in achieving the noble goal of “confront[ing] the effects of racial discrimination”8 in government contracting. Part I summarizes the Supreme Court’s decisions in Adarand and Croson, focusing primarily on the Court’s definition of strict scrutiny in those decisions. It also includes a brief description of the historical development of affirmative action in government contracting. Part II explores the impact of the Adarand decision on federal programs and considers not only the statutory revisions prompted by that decision but also the subsequent appellate decisions that evaluated these federal programs …
The Unmerry Widow: Spousal Disinheritance And Life Insurance In North Carolina, Jeffrey S. Kinsler
The Unmerry Widow: Spousal Disinheritance And Life Insurance In North Carolina, Jeffrey S. Kinsler
Law Faculty Scholarship
In spite of our nation’s long-held public policy of protecting surviving spouses, some people purposely disinherit their spouses. For centuries, North Carolina more or less tolerated intentional spousal disinheritance. In 1959, in an effort to protect surviving spouses from deliberate disinheritance, North Carolina adopted a “right of dissent” statute that authorized a surviving spouse to renounce the decedent spouse’s will and receive a statutorily prescribed share (ranging from one-sixth to one-half) of the decedent spouse’s probate estate. Because the dissent statute was limited to the decedent spouse’s probate estate, it was easily circumvented through the use of non-probate transfers. In …
Lost In The Maze Of Appeals: The Eleventh Circuit's Review Of Decisions By The Board Of Immigration Appeals, Amy L. Moore
Lost In The Maze Of Appeals: The Eleventh Circuit's Review Of Decisions By The Board Of Immigration Appeals, Amy L. Moore
Law Faculty Scholarship
The Eleventh Circuit reviews decisions made by the Board of Immigration Appeals with a very lenient substantial evidence test that incorporates the idea of compulsion. In other words, the record must compel an opposite conclusion for a decision to be overturned as opposed to merely being unsupported by substantial evidence. This article details the job of the Board of Immigration Appeals, the types of claims it hears, and the types of review applied to it by the Eleventh Circuit. A study of 251 cases from 1990 through 2008 suggests that the Eleventh Circuit hardly ever overturns the Board of Immigration …
The Game Is Afoot: Constitutionalizing The Right To Hunt And Fish In The Tennessee Constitution, Jeffrey Omar Usman
The Game Is Afoot: Constitutionalizing The Right To Hunt And Fish In The Tennessee Constitution, Jeffrey Omar Usman
Law Faculty Scholarship
The normative role of state constitutions, which are simultaneously paramount state law and inferior to the whims of even the most minor federal regulation, is a matter of some uncertainty. In recent years, state constitutions have been significantly affected by another wave of popular constitutionalism. As part of this movement, since 1996, seven states have adopted constitutional provisions guaranteeing a right to hunt and fish. This article explores the constitutionalization of hunting and fishing rights under state constitutions. It begins by tracing hunting and fishing rights through western legal history with a special emphasis on Ancient Rome, England, and the …
Arthur Andersen And The Temple Of Doom, Jeffrey S. Kinsler
Arthur Andersen And The Temple Of Doom, Jeffrey S. Kinsler
Law Faculty Scholarship
The story of Nancy Temple ("Temple") and Arthur Andersen ("Andersen") is infamous in legal ethics. Temple was the in-house lawyer that advised Andersen's employees to shred documents on the eve of the Security and Exchange Commission's ("SEC") investigation of Enron Corporation ("Enron"). Temple's advice triggered a string of events that culminated in the needless demise of America's fifth-largest accounting firm. By contrast, my Arthur Andersen story is unknown, until now that is. In late 1999, I was offered the position on Andersen's in-house staff that Temple ultimately accepted. I declined the offer, for I suspected that Andersen was not seeking …
Defining Religion: The Struggle To Define Religion Under The First Amendment And The Contributions And Insights Of Other Disciplines Of Study, Including Theology, Psychology, Sociology, The Arts, And Anthropology, Jeffrey Omar Usman
Law Faculty Scholarship
This article attempts to explore from many vantage points one word within one context — the word “religion” in the First Amendment of the United States Constitution. The article begins with placing our understanding of religion in a historical context. By exploring the history of religious liberty in the colonies and the Founders’ view thereof, an understanding of what the Founders were seeking to protect by safeguarding religious liberty will be gained. Having established this framework, the article then addresses overarching issues that complicate the quest to define religion. Then, the article transitions into an exploration of the development of …
Georgia's Noble Revolution: Three Governors, Two Armies, The Georgia Supreme Court, And The Gubernatorial Election Of 1946, Lucian E. Dervan
Georgia's Noble Revolution: Three Governors, Two Armies, The Georgia Supreme Court, And The Gubernatorial Election Of 1946, Lucian E. Dervan
Law Faculty Scholarship
In 1946, the governor-elect of Georgia died, sparking a constitutional battle that brought a state government to its knees and a state supreme court to the height of its power. As two armies drew up on the streets of Atlanta, fights erupted in the executive offices and two men stood head to head in a battle for the vacant governor's seat. Into this fray, however, came the rule of law in the form of the state courts, and what may have swelled into an armed conflict of unseen proportions in twentieth century American politics ended with the stirring strike of …
Plea Bargaining's Survival: Financial Crimes Plea Bargaining, A Continued Triumph In A Post-Enron World, Lucian E. Dervan
Plea Bargaining's Survival: Financial Crimes Plea Bargaining, A Continued Triumph In A Post-Enron World, Lucian E. Dervan
Law Faculty Scholarship
This article examines the war on financial crimes that began after the collapse of Enron in 2001. Although many believed that the reforms implemented following this scandal led to greater prosecutorial focus on financial crimes and longer prison sentences, an analysis of data from 1995 through 2006 reveals that little has actually changed. The statistics demonstrate that the government's focus on financial crimes has not increased and prison sentences for fraud have remained stagnant. How could this be the case? It is this author's hypothesis that although prosecutors could have chosen to use new statutes and amendments to the United …
Blogs And The First Amendment, David L. Hudson Jr.
Blogs And The First Amendment, David L. Hudson Jr.
Law Faculty Scholarship
An essay discussing the First Amendment implications of blogs.
More Than The Camel’S Nose: The Sarbanes-Oxley Act As Bad News For Lawyers, Clients, And The Public, Timothy P. Chinaris
More Than The Camel’S Nose: The Sarbanes-Oxley Act As Bad News For Lawyers, Clients, And The Public, Timothy P. Chinaris
Law Faculty Scholarship
Business executives, accountants, lawyers, and the general public have shown great interest in the Sarbanes-Oxley Act ("the Act") that was passed by Congress and signed into law by President George W. Bush in 2002. Designed as securities legislation, the Act reaches into areas of lawyer conduct, and the regulation of that lawyer conduct, that previously were the domain primarily of state supreme courts. Lawyers, law firms, and bar organizations have recognized that the concept of what it means to be an ethical lawyer has been altered by the Act. Related developments spawned by the Act's passage will continue to change …
Even Judges Don’T Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings, Timothy P. Chinaris
Even Judges Don’T Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings, Timothy P. Chinaris
Law Faculty Scholarship
A lawyer charged with a disciplinary violation is in a precarious position. Not only has the lawyer been accused of being "unethical," but he or she faces prosecution by an adversary typically staffed with professional prosecutors who are familiar with the system's often-arcane procedures and backed up by substantial financial resources. In order to mount an effective defense against the disciplinary charges, an accused lawyer may want to introduce expert testimony on his or her behalf. Will such testimony be admitted? Unfortunately for the accused lawyer, the answer is not at all clear. The relatively few jurisdictions that have directly …
Student Expression In The Age Of Columbine: Securing Safety And Protecting First Amendment Rights, David L. Hudson Jr.
Student Expression In The Age Of Columbine: Securing Safety And Protecting First Amendment Rights, David L. Hudson Jr.
Law Faculty Scholarship
"Student Expression in the Age of Columbine" is one in an ongoing series of First Reports, published by the First Amendment Center, on major First Amendment issues of our time.
Justice Brennan's Significant Departure And Warning Of An Evisceration, David L. Hudson Jr.
Justice Brennan's Significant Departure And Warning Of An Evisceration, David L. Hudson Jr.
Law Faculty Scholarship
An essay on Justice Brennan's First Amendment jurisprudence regarding obscenity and the secondary effects doctrine.
Does Capital Punishment Have A Future? : A Resource Guide For Teachers, David L. Hudson Jr.
Does Capital Punishment Have A Future? : A Resource Guide For Teachers, David L. Hudson Jr.
Law Faculty Scholarship
The resource guide is intended to help teachers lead students through an exploration of the application of capital punishment in the United States. It offers substantive information about landmark U.S. Supreme Court cases affirming the constitutionality of the dearth penalty, establishing limits for its imposition, and setting legal procedures for judicial review. It explores the philosophical arguments for and against the death penalty, the social context for the death penalty debate, and current international perspectives. Understanding capital punishment and the issues it raises for the American legal system is necessary for students to become fully functioning citizens in a constitutional …
The Separation Of Powers And The Public Policy Role Of The State Court In A Routine Case, Harold See
The Separation Of Powers And The Public Policy Role Of The State Court In A Routine Case, Harold See
Law Faculty Scholarship
Grand questions like those of tyranny and anarchy rarely present themselves in royal attire, but, instead, appear in humble garb. I wish to address the constitutional issue of the separation and balance of powers in our tripartite structure of government, but I will address it in humble dress.
Taxation Without Explanation: The Federal Gift Tax, Jeffrey S. Kinsler
Taxation Without Explanation: The Federal Gift Tax, Jeffrey S. Kinsler
Law Faculty Scholarship
The Federal Gift Tax is designed to implement two competing policies: to tax gifts so as to prevent taxpayers from depleting their estates (and thus evading the estate tax) with tax-free lifetime transfers; but to tax gifts at a rate lower than testamentary transfers so as to encourage taxpayers to circulate wealth during life, thereby stimulating economic growth and income tax revenue. The gift tax has always been carefully crafted to balance these competing interests. That is, until now. The Economic Growth and Tax Relief Reconciliation Act of 2001 ("EGTRRA") completely perverted these two policies.' EGTRRA was sold to the …
Circuit-Specific Application Of The Internal Revenue Code: An Unconstitutional Tax, Jeffrey S. Kinsler
Circuit-Specific Application Of The Internal Revenue Code: An Unconstitutional Tax, Jeffrey S. Kinsler
Law Faculty Scholarship
For all practical purposes, the Constitution prescribes only one limit on the federal government's power to tax: the Uniformity Clause, which requires that indirect taxes, such as income and excise taxes, be "uniform throughout the United States ... " It is exceedingly rare for a federal tax law to violate the Uniformity Clause. The Internal Revenue Code does not fix different taxes for different states, as Congress has carefully crafted the tax laws to avoid geographical distinctions. Unfortunately, the Internal Revenue Service ("IRS") has not always been so careful. In recent years, the IRS has adopted a practice of applying …
The Evolution Of Iranian Islamism From The Revolution Through The Contemporary Reformers, Jeffrey Omar Usman
The Evolution Of Iranian Islamism From The Revolution Through The Contemporary Reformers, Jeffrey Omar Usman
Law Faculty Scholarship
This Note explores the evolution and maturation of Iranian Islamism from the revolutionary elites through the contemporary reformers of the 21st century. The Author examines the conflicting ideological influences that are shaping the Islamist movement in Iran. This Note begins by presenting the framework of the fundamental contradictions that underlie Iranian Islamist ideology. The analysis of the Iranian Constitution is divided into an exploration of the institutional role of the clerical elites in the form of the faqih and the Council of Guardians, the constitutionally defined role of women, the democratic elements in the Iranian Constitution, and Marxism and environmentalism …
Balancing Act : Public Employees And Free Speech, David L. Hudson Jr.
Balancing Act : Public Employees And Free Speech, David L. Hudson Jr.
Law Faculty Scholarship
More than 20 million Americans work for federal, state or local governments. Sometimes these employees are disciplined for speaking out against government corruption, belonging to a particular political party, criticizing agency policy or engaging in private conduct of which the employer disapproves. Granted, government employers need some leeway when dealing with their employees. After all, the primary function of a government agency is to provide efficient services to the public, and if a government employer were second-guessed every time it disciplined a public employee, services could grind to a halt. On the other hand, such employers do not have unfettered …
Justice Clarence Thomas: The Emergence Of A Commercial-Speech Protector, David L. Hudson Jr.
Justice Clarence Thomas: The Emergence Of A Commercial-Speech Protector, David L. Hudson Jr.
Law Faculty Scholarship
An examination of Justice Clarence Thomas' jurisprudence regarding commercial speech.
Reflecting On The Virtual Child Porn Decision, David L. Hudson Jr.
Reflecting On The Virtual Child Porn Decision, David L. Hudson Jr.
Law Faculty Scholarship
An essay on Ashcroft v. Free Speech Coalition, the so-called virtual child pornography case.
The Courts’ Inconsistent Treatment Of Bethel V. Fraser And The Curtailment Of Student Rights, David L. Hudson Jr., John E. Ferguson Jr.
The Courts’ Inconsistent Treatment Of Bethel V. Fraser And The Curtailment Of Student Rights, David L. Hudson Jr., John E. Ferguson Jr.
Law Faculty Scholarship
The majority of courts have cited Bethel v. Fraser in such a way as to give public school officials free reign to censor vulgar, lewd, or plainly offensive student speech. Some courts have gone a step further and prohibited student speech that contains offensive ideas. This article seeks to explain how the Fraser decision curtailed student rights recognized in the Supreme Court's last pure student speech case, Tinker v. Des Moines Independent Community School District.
Fear Of Violence In Our Schools: Is ‘Undifferentiated Fear’ In The Age Of Columbine Leading To A Suppression Of Student Speech?, David L. Hudson Jr.
Fear Of Violence In Our Schools: Is ‘Undifferentiated Fear’ In The Age Of Columbine Leading To A Suppression Of Student Speech?, David L. Hudson Jr.
Law Faculty Scholarship
An essay on the suppression of student speech in the age of mass school shootings.
Three Governors: Herman Talmadge, The Georgia Supreme Court And The Gubernatorial Election Of 1946, Lucian E. Dervan
Three Governors: Herman Talmadge, The Georgia Supreme Court And The Gubernatorial Election Of 1946, Lucian E. Dervan
Law Faculty Scholarship
Herman Talmadge, who died March 21, 2002, was a governor, senator, and Georgia icon who controlled state politics for much of the last half of the 20th century. While many events in Talmadge’s life deserve attention, one event in particular stands out amongst the trials and tribulations, victories and scandals in this long American political life. In 1946, the Georgia gubernatorial election brought a state government to its knees, a state Supreme Court to the height of its power and Talmadge into the national spotlight as a revolver toting aspiring governor.
The Lsat Myth, Jeffrey S. Kinsler
The Lsat Myth, Jeffrey S. Kinsler
Law Faculty Scholarship
Predicting which students will perform well in law school may seem like an impossible task, but law schools endeavor to do so everyday, and the primary tool they use to make such predictions is the Law School Admission Test (LSAT), a standardized, 101-question multiple-choice examination. This article explores whether the LSAT warrants such prominence. Using statistical and anecdotal evidence, this article analyzes recent graduates of Marquette University Law School (MULS) to ascertain whether: (1) the LSAT is a valid predictor of three-year performance in law school; (2) the LSAT is a better predictor of law school performance than the UGPA …
Joseph Mccarthy, The Law Student, Jeffrey S. Kinsler
Joseph Mccarthy, The Law Student, Jeffrey S. Kinsler
Law Faculty Scholarship
Much is known about Joseph McCarthy, the United States Senator. A fair amount is also known about Joseph McCarthy, the lawyer and Circuit Court Judge; particularly in his home state of Wisconsin. Not much is known, however, about Joe McCarthy, the law student. This is unfortunate because, arguably, many of the traits that catapulted McCarthy to the top and bottom of American politics were first exhibited in law school. It is a safe bet that very few of the current students at Marquette University Law School (MULS) are even aware that Joe McCarthy is an alumnus (LL.B., 1935) of the …
Selected Conceptions Of Federalism: The Selective Use Of History In The Supreme Court's States' Rights Opinions, Lucian E. Dervan
Selected Conceptions Of Federalism: The Selective Use Of History In The Supreme Court's States' Rights Opinions, Lucian E. Dervan
Law Faculty Scholarship
In the period leading to the Civil War, debate over federalism and states’ rights developed into the seeds of a war that would forever change America. Over one hundred years later, the debate over federalism continues, unanswered by the blood of more than half a million soldiers. Over the last decade, the United States Supreme Court has increased state sovereignty and state immunity to levels unseen since the pre-Civil War period. The Court’s opinions are structured in a manner that relies significantly on historical methodologies. The multiple rationales used to structure the Justices’ arguments clash, and the Justices spar with …
The New Face Of Creationism: The Establishment Clause And The Latest Efforts To Suppress Evolution In Public Schools, Deborah R. Farringer
The New Face Of Creationism: The Establishment Clause And The Latest Efforts To Suppress Evolution In Public Schools, Deborah R. Farringer
Law Faculty Scholarship
If America wants to stay at the forefront of scientific study and remain competitive with other nations, its students must be taught scientific principles that are generally applied in the global scientific community. Thus, the implications involved in the latest battles over God and science extend beyond whether to teach controversial subjects, and could have a significant effect on the future of American schools. These problems warrant the development of a new test, or new legal analysis, that will enable the Court to deal with this latest chapter in the heated evolution and creationism debate. This Note examines the evidentiary …
Censorship Of Student Internet Speech: The Effect Of Diminishing Student Rights, Fear Of The Internet And Columbine, David L. Hudson Jr.
Censorship Of Student Internet Speech: The Effect Of Diminishing Student Rights, Fear Of The Internet And Columbine, David L. Hudson Jr.
Law Faculty Scholarship
Analysis and examination of the case law of student Internet website speech created off campus.