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The Supreme Court And Religious Liberty, Joseph D. Kearney 2015 Marquette University Law School

The Supreme Court And Religious Liberty, Joseph D. Kearney

Marquette Law Review

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Neuro Lie Detection And Mental Privacy, Madison Kilbride, Jason Iuliano 2015 University of Maryland Francis King Carey School of Law

Neuro Lie Detection And Mental Privacy, Madison Kilbride, Jason Iuliano

Maryland Law Review

New technologies inevitably raise novel legal questions. This is particularly true of technologies, such as neuro lie detection, that offer new ways to investigate crime. Recently, a number of scholars have asked whether neuro lie detection testing is constitutional. So far, the debate has focused on the Fifth Amendment—specifically whether evidence gathered through neuro lie detection is constitutionally admissible because it is “physical” in nature or inadmissible because it is “testimonial” in nature. Under current Supreme Court doctrine, this Fifth Amendment debate is intractable. However, the more fundamental question of whether the government can compel individuals to undergo a neuro …


Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff 2015 University of Maryland Francis King Carey School of Law

Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff

Maryland Law Review

No abstract provided.


A Conceptual Disaster Zone Indeed: The Incoherence Of The State And The Need For State Action Doctrine(S), Brookes Brown 2015 University of Maryland Francis King Carey School of Law

A Conceptual Disaster Zone Indeed: The Incoherence Of The State And The Need For State Action Doctrine(S), Brookes Brown

Maryland Law Review

No abstract provided.


Emergency Takings, Brian Lee 2015 Brooklyn Law School

Emergency Takings, Brian Lee

Faculty Scholarship

No abstract provided.


Threshold Liberty, Dawinder S. Sidhu 2015 University of New Mexico School of Law

Threshold Liberty, Dawinder S. Sidhu

Cardozo Law Review

The Supreme Court's Thirteenth Amendment precedent is no longer sustainable. For starters, that precedent - which holds that the Amendment prohibits the "badges and incidents" of slavery, and that Congress has the power to "rationally" determine what constitutes a "badge or incident" of slavery - raises serious federalism and separation of powers concerns. To make matters worse, the Court itself has recently restricted the enforcement provisions of the Fourteenth Amendment (in City of Boerne v. Flores) and Fifteenth Amendment (in Shelby County v. Holder), rendering the generous bounds of the Thirteenth Amendment enforcement power an outlier among the …


Taxing Legalized Marijuana: How Courts Should Treat Drug Tax Statutes In Light Of The Fifth Amendment's Self-Incrimination Clause And Executive Non-Enforcement Of The Controlled Substances Act, Joseph A. Goldstein 2015 Benjamin N. Cardozo School of Law

Taxing Legalized Marijuana: How Courts Should Treat Drug Tax Statutes In Light Of The Fifth Amendment's Self-Incrimination Clause And Executive Non-Enforcement Of The Controlled Substances Act, Joseph A. Goldstein

Cardozo Law Review

No abstract provided.


Title Ix Giveth And The Religious Exemption Taketh Away: How The Religious Exemption Eviscerates The Protection Afforded Transgender Students Under Title Ix, Amanda Bryk 2015 Benjamin N. Cardozo School of Law

Title Ix Giveth And The Religious Exemption Taketh Away: How The Religious Exemption Eviscerates The Protection Afforded Transgender Students Under Title Ix, Amanda Bryk

Cardozo Law Review

No abstract provided.


Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove 2015 Stanford University

Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove

Fordham Law Review

    With some apologies for a vast degree of oversimplification, let us stipulate that there are two main forms of originalism. One is known as “semantic” or “public meaning” originalism. Its leading advocates include Lawrence Solum, Keith Whittington, and Randy Barnett (professional friends, all). The leading premise of semantic originalism is that the meaning of the constitutional text—or, more specifically, of its individual clauses—was fixed at the moment of its adoption. Under this view, the goal of constitutional interpretation is to recover that original meaning, and the best way to do that pivots on reconstructing how an informed reader, whether a …


The Lost History Of The Political Question Doctrine, Tara Leigh Grove 2015 William & Mary Law School

The Lost History Of The Political Question Doctrine, Tara Leigh Grove

Faculty Publications

This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth …


Foreword: Private And Public Revisited Once Again, Mark A. Graber 2015 University of Maryland Francis King Carey School of Law

Foreword: Private And Public Revisited Once Again, Mark A. Graber

Maryland Law Review

No abstract provided.


Evangelical Reform And The Paradoxical Origins Of The Right To Privacy, John W. Compton 2015 University of Maryland Francis King Carey School of Law

Evangelical Reform And The Paradoxical Origins Of The Right To Privacy, John W. Compton

Maryland Law Review

No abstract provided.


Some Dilemmas In Drawing The Public/Private Distinction In New Deal Era State Constitutional Law, Keith Whittington 2015 University of Maryland Francis King Carey School of Law

Some Dilemmas In Drawing The Public/Private Distinction In New Deal Era State Constitutional Law, Keith Whittington

Maryland Law Review

No abstract provided.


Telescoping And Collectivizing Religious Free Exercise Rights, Henry L. Chambers Jr 2015 University of Maryland Francis King Carey School of Law

Telescoping And Collectivizing Religious Free Exercise Rights, Henry L. Chambers Jr

Maryland Law Review

No abstract provided.


“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell 2015 Fordham University School of Law

“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell

Fordham Law Review

    The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern First Amendment doctrine and only obliquely implicates larger jurisprudential questions about the rights of assembly and freedom of expression. In strictly doctrinal terms, Montgomery is primarily about the obligation of a justice of the peace to put down a riot, not …


Specifically Authorized By Binding Precedent Does Not Mean Suggested By Persuasive Precedent: Applying Good-Faith Exception After Davis V. United States, Zachary C. Bolitho 2015 Campbell University School of Law

Specifically Authorized By Binding Precedent Does Not Mean Suggested By Persuasive Precedent: Applying Good-Faith Exception After Davis V. United States, Zachary C. Bolitho

West Virginia Law Review

No abstract provided.


Conflicts Originalism: The "Original Content" Of The Full Faith And Credit Clause And The Compulsory Choice Of Marriage Law, J. Sephen Clark 2015 Albany Law School

Conflicts Originalism: The "Original Content" Of The Full Faith And Credit Clause And The Compulsory Choice Of Marriage Law, J. Sephen Clark

West Virginia Law Review

No abstract provided.


The Moral Reading All Down The Line, James E. Fleming 2015 Boston University School of Law

The Moral Reading All Down The Line, James E. Fleming

Faculty Scholarship

Michael W. McConnell has written an elegant and illuminating article about constitutional interpretation.' He seeks to show how five major methodological approaches fit together. The five approaches he discusses are: "originalism, precedent, longstanding practice, judicial restraint, and living constitutionalism (here called the normative approach)."'2 He distinguishes two camps with respect to these approaches. One camp, he notes, "advocates for (or against) a particular approach ... on the assumption that these approaches are mutually inconsistent and that the task is to determine which is best . . . .3 The other camp "treats the various common approaches as mere tools in …


Time, Institutions, And Adjudication, Gary S. Lawson 2015 Boston Univeristy School of Law

Time, Institutions, And Adjudication, Gary S. Lawson

Faculty Scholarship

Some of my earliest and fondest memories regarding constitutional theory involve Mike McConnell. He was a participant at the very first Federalist Society conference in 1982, at a time when the entire universe of conservative constitutional theorists fit comfortably in the front of one classroom. More importantly, at another Federalist Society conference in 1987, he gave a speech on constitutional interpretation that, unbeknownst to him, profoundly shaped my entire intellectual approach to the field by emphasizing the obvious but oftoverlooked point that different kinds of documents call for different kinds of interpretative methods.1 In 2015, it is more than an …


A Critical Assessment Of The Role Of The Venice Commission In Processes Of Domestic Constitutional Reform, Maartje DE VISSER 2015 Singapore Management University

A Critical Assessment Of The Role Of The Venice Commission In Processes Of Domestic Constitutional Reform, Maartje De Visser

Research Collection Yong Pung How School Of Law

On January 26, 2014, an overwhelming majority of the National Constituent Assembly of Tunisia approved the country's new constitution. Drafted in the aftermath of the Tunisian revolution, the constitution received considerable international critical acclaim, regarding the manner in which the text had been drafted and adopted as well as its content, notably the entrenchment of a host of fundamental rights and liberties. Comparisons have inevitably been drawn with Egypt's new constitution and those of other Arab nations, with the Tunisian text hailed as one of the most progressive in the region, providing the foundations for a modern and credible democracy. …


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