When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment,
2016
University of Nevada, Las Vegas -- William S. Boyd School of Law
When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment, Michael Kagan
Scholarly Works
The legal protection of free speech for immigrants in the United States is surprisingly limited, and it may be under more threat than is commonly understood. Although many unauthorized immigrants have become politically active in campaigning for immigration reform, their ability to speak out publicly may depend more on political discretion than on the Constitutional protections that we normally take for granted. Potential threats to immigrant free speech may be seen in three areas of law. First, a broad claim has been made by the Department of Justice that immigrants who have not been legally admitted to the country have …
Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency,
2016
University of Nevada, Las Vegas -- William S. Boyd School of Law
Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency, David Orentlicher
Scholarly Works
In this article, Professor Orentlicher examines the Constitution's design for the executive branch. He argues that by opting for a single executive rather than a multi-person executive, the Constitution causes two serious problems-it fuels the high levels of partisan polarization that we see today, and it increases the likelihood of misguided presidential decision making. Drawing on the experience in other countries with executive power shared by multiple officials, he proposes a bipartisan executive.
Off-Label Drug Marketing, The First Amendment, And Federalism,
2016
University of Nevada, Las Vegas -- William S. Boyd School of Law
Off-Label Drug Marketing, The First Amendment, And Federalism, David Orentlicher
Scholarly Works
In this article, Professor Orentlicher explores free speech and federalism issues arising from FDA regulation of off-label uses and off-label marketing of drugs. In light of the FDA's desire to respect state government authority, together with other considerations discussed in this article, he argues for the rejection of the analysis of the Caronia court and to give the FDA significant leeway in its regulation of off-label marketing.
A Tale Of Two Cases,
2016
The Heritage Foundation
A Tale Of Two Cases, Paul J. Larkin Jr.
Washington and Lee Law Review
No abstract provided.
A Curious Call For More Judicial Activism: Comment On Alexandra Klein's "The Freedom To Pursue A Common Calling",
2016
Washington and Lee University
A Curious Call For More Judicial Activism: Comment On Alexandra Klein's "The Freedom To Pursue A Common Calling", Mark Rush
Washington and Lee Law Review
No abstract provided.
Meyer, Pierce, And The History Of The Entire Human Race: Barbarism, Social Progress, And (The Fall And Rise Of) Parental Rights,
2016
Georgetown University Law Center
Meyer, Pierce, And The History Of The Entire Human Race: Barbarism, Social Progress, And (The Fall And Rise Of) Parental Rights, Jeffrey Shulman
Georgetown Law Faculty Publications and Other Works
Long before the Supreme Court’s seminal parenting cases took a due process Lochnerian turn, American courts had been working to fashion family law doctrine on the premise that parents are only entrusted with custody of the child, and then only as long as they meet their fiduciary duty to take proper care of the child. With its progressive, anti-patriarchal orientation, this jurisprudence was in part a creature of its time, reflecting the evolutionary biases of the emerging fields of sociology, anthropology, and legal ethnohistory. In short, the courts embraced the new, “scientific” view that social “progress” entails the decline and, …
Protecting The Watchdog: Using The Freedom Of Information Act To Preference The Press,
2016
Georgetown University Law Center
Protecting The Watchdog: Using The Freedom Of Information Act To Preference The Press, Erin C. Carroll
Georgetown Law Faculty Publications and Other Works
The fourth estate is undergoing dramatic changes. Many newspaper reporters, already surrounded by a growing number of empty desks, are shifting their focus away from costly investigative reporting and towards amassing Twitter followers and writing the perfect “share line.” Newspapers’ budgets can no longer robustly support accountability journalism and pitching fights against the government. And so, while this busier and noisier media environment may have a desirable democratizing effect—more of us are able to participate in analyzing, debating, and perhaps even making the news—it has not succeeded in filling a role that print journalists have traditionally played well—keeping watch on …
Foreword: Why Popular Sovereignty Requires The Due Process Of Law To Challenge "Irrational Or Arbitrary" Statutes,
2016
Georgetown University Law Center
Foreword: Why Popular Sovereignty Requires The Due Process Of Law To Challenge "Irrational Or Arbitrary" Statutes, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
So-called “substantive due process” has long been criticized progressives and conservatives as a contradictory interpretation of the Due Process Clauses, and one that undermines the popular sovereignty of We the People to govern themselves. In this Foreword, I explain why an individual conception of We the People, leads to a “republican” conception of popular sovereignty that requires a neutral magistrate to adjudicate whether a statute restricting the liberties of the We the People is within the just powers of a legislature to enact. Because a measure that is ultra vires is not truly “a law,” enforcing it against a fellow …
The Development Of Chinese Constitutionalism,
2016
St. Mary's University School of Law
The Development Of Chinese Constitutionalism, Chenglin Liu
St. Mary's Law Journal
Since the establishment of the People's Republic of China (PRC) in 1949, the country has enacted four constitutions. This Article provides a historical analysis of how the Communist Party of China (the Party) and its paramount leaders shaped each constitution, influenced the public perception of the law, and determined the method individual constitutional rights should be permitted. Through examining leading incidents that defined the PRC's history, this Article provides a detailed examination of how the Party used a constitutional framework to achieve its specific agenda of the time.
Gay Rights Versus Religious Freedom, And The Influence Of Obergefell V. Hodges On Distinguishing The Dividing Line,
2016
St. Mary's University School of Law
Gay Rights Versus Religious Freedom, And The Influence Of Obergefell V. Hodges On Distinguishing The Dividing Line, Kathleen Rainey Mcstravick
St. Mary's Law Journal
Obergefell v. Hodges, a United States Supreme Court case, added more fuel to the fire, leaving many to wonder how to voice religious opposition to same-sex marriages, and what are the second order effects for religious opposition in light of the new rule. The Court held the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution guarantees protection against discrimination based on sexual orientation. Obergefell, brings the conflict between freedom of religion and LGBT rights to a new level by questioning how far freedom of religion can be used to refuse anti-discrimination statutes regarding sexual …
50th Annual William H. Leary Lecture - Fifty Years Of Constitutional Law: What's Changed?,
2016
SJ Quinney College of Law, University of Utah
50th Annual William H. Leary Lecture - Fifty Years Of Constitutional Law: What's Changed?, Erwin Chemerinsky
Utah Law Review
I truly believe that over the next fifty years there will be, as there was in the prior fifty years, an expansion of freedom; an increase in equality. Because here I believe, and I’ll conclude with this, that the late Dr. Martin Luther King got it right when he said “The arc of the moral universe is long but it bends towards justice."
Decriminalizing Polygamy,
2016
SJ Quinney College of Law, University of Utah
Decriminalizing Polygamy, Casey E. Faucon
Utah Law Review
Polygamous families are our national outlaws. Despite the expansion of sexual rights and marriage equality in the U.S., polygamy remains a crime. Challenging that stigma is the Brown family, who star in the reality TV show “Sister Wives” and who practice polygamous marriageas a tenet of their religion. The Browns filed suit against multiple Utah state actors in federal district court, challenging Utah’s polygamy statute as unconstitutional in violation of their Free Exercise of Religion, substantive Due Process, and Equal Protection rights. The district court agreed and decriminalized informal polygamy in Utah. On appeal, the Tenth Circuit reversed the district …
Evading The Schoolhouse Gate: Public Schools (K-12) And The Regulation Of Cyberbullying,
2016
SJ Quinney College of Law, University of Utah
Evading The Schoolhouse Gate: Public Schools (K-12) And The Regulation Of Cyberbullying, Philip Lee
Utah Law Review
Cyberbullying has received increasing societal attention in the aftermath of the tragic suicides of some of its youngest and most vulnerable victims. In this Article, I have argued that cyberbullying is so harmful, in and of itself, that it should be afforded diminished First Amendment protections. I have also advocated for a narrow definition of cyberbullying that incorporates the three elements of the prevailing social scientists’ definition of “bullying” as it relates to cyberbullying: (1) intent to harm; (2) repetition; and (3) power imbalance between cyberbully and victim.
Confirming Judges In The 2016 Senate Lame Duck Session,
2016
University of Richmond
Confirming Judges In The 2016 Senate Lame Duck Session, Carl W. Tobias
Law Faculty Publications
In this piece, Professor Carl Tobias descriptively scrutinizes the nomination and confirmation regimes throughout the administration of President Barack Obama. The article critically evaluates selection finding that persistent Republican Senate obstruction resulted in the greatest number of unoccupied posts for the longest duration, briefly moderated by the 2013 detonation of the “nuclear option,” which constricted filibusters. Nevertheless, the article contends when the Grand Old Party (GOP) attained a chamber majority, Republicans dramatically slowed the nomination and confirmation processes after January 2015. Therefore, openings surpassed ninety before Congress is scheduled to reassemble. Because this dilemma erodes rapid, inexpensive, and equitable disposition, …
Fisher’S Cautionary Tale And The Urgent Need For Equal Access To An Excellent Education,
2016
University of Richmond
Fisher’S Cautionary Tale And The Urgent Need For Equal Access To An Excellent Education, Kimberly J. Robinson
Law Faculty Publications
In this Comment, I argue that much greater care and attention must be paid to the educational opportunity gaps and resulting achievement gaps that prompt many colleges and universities to rely on affirmative action. Increased attention to greater equality and excellence in elementary and secondary education can help reduce or eliminate the need for affirmative action, which is an approach that fundamentally aims to ensure equality. Without additional attention to closing opportunity gaps, the Court may declare that the time has come for affirmative action to end, but the United States will not be equipped to maintain diverse, selective postsecondary …
On The Uneven Journey To Constitutional Redemption: The Malaysian Judiciary And Constitutional Politics,
2016
Georgetown University Law Center
On The Uneven Journey To Constitutional Redemption: The Malaysian Judiciary And Constitutional Politics, Yvonne Tew
Georgetown Law Faculty Publications and Other Works
This article explores the Malaysian judiciary’s approach toward interpreting the Federal Constitution of Malaysia and situates it within the context of the nation’s political and constitutional history. It traces the judiciary’s tentative movement toward a more rights-oriented approach followed by its more recent retreat in several appellate court decisions. This article argues that the Malaysian courts’ journey toward constitutional redemption has been uneven so far. In order to reclaim its constitutional position as a co-equal branch of government, the Malaysian judiciary must exhibit greater willingness to assert its commitment to constitutional supremacy and the rule of law.
The Once And Future Promise Of Access To Justice In Washington's Article I, Section 10,
2016
University of Washington School of Law
The Once And Future Promise Of Access To Justice In Washington's Article I, Section 10, Debra Stephens
Washington Law Review Online
This Essay is part of the Symposium on State Constitutional Law in Honor of the late Washington State Supreme Court Justice Robert F. Utter that was held on October 23, 2015.
Preserving Judicial Independence In Dominant Party States,
2016
William Nelson Cromwell Professor of Law at Harvard Law School
Preserving Judicial Independence In Dominant Party States, Mark Tushnet
NYLS Law Review
No abstract provided.
The Armstrong Evolution,
2016
University of Colorado Law School
Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons,
2016
University of the District of Columbia
Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Andrew Ferguson, Stephen E. Henderson
Faculty Articles
What is the constitutional significance of the proverbial “keep off the grass” sign? This question—asked by curmudgeonly neighbors everywhere—has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding—and control over—access to property, “the people” may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education and empowerment: Fourth Amendment LAWn signs. With every …
