To Yoder Or Not To Yoder? How The Spending Clause Holding In National Federation Of Independent Business V. Sebelius Can Be Used To Challenge The No Child Left Behind Act,
2014
Pace University School of Law
To Yoder Or Not To Yoder? How The Spending Clause Holding In National Federation Of Independent Business V. Sebelius Can Be Used To Challenge The No Child Left Behind Act, Christopher Roma
Pace Law Review
States such as California, Texas, Montana, Nebraska and Pennsylvania all have either declined to apply for waivers out of the testing, accountability, and penalty schemes of No Child Left Behind; or, have had their applications rejected by the Department of Education. This Article argues that these states would have a legitimate challenge to NCLB as unconstitutionally coercive based on the precedent of Sebelius. As discussed more in the sections that follow, not only is NCLB and Title I the largest federal funding program behind Medicaid, it also shares many of the characteristics that the opinions in Sebelius found to be …
December 6, 2014: The Death Of Meaning In Law And Life,
2014
Duquesne University
December 6, 2014: The Death Of Meaning In Law And Life, Bruce Ledewitz
Hallowed Secularism
Blog post, “The Death of Meaning in Law and Life“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Federal Appeals Court Spares Mentally Ill Man From Execution -- For Now,
2014
Western New England University School of Law
Federal Appeals Court Spares Mentally Ill Man From Execution -- For Now, Lauren Carasik
Media Presence
No abstract provided.
The Conservative-Libertarian Turn In First Amendment Jurisprudence,
2014
IIT Chicago-Kent College of Law
The Conservative-Libertarian Turn In First Amendment Jurisprudence, Steven J. Heyman
All Faculty Scholarship
Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak also can be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have …
Respecting Legislators And Rejecting Baselines: Rebalancing Casey,
2014
Notre Dame Law School
Respecting Legislators And Rejecting Baselines: Rebalancing Casey, Paul C. Quast
Notre Dame Law Review
Part I of this Note describes the background cases leading to the Supreme Court’s decision in Casey and the resulting undue burden standard. This Part also explains the limited circumstances in which the undue burden standard gives more definitive guidelines for judicial decisionmaking. Part II works through several federal district and appellate court cases to identify some of the underlying baseline presumptions and normative value judgments influencing judicial decisions in this area of the law. These baselines are often dispositive in determining whether a restriction on abortion is due or undue, cutting against the goodwill attempts by legislatures to make …
The Rule Of Law As A Law Of Law,
2014
Northwestern University School of Law
The Rule Of Law As A Law Of Law, Steven G. Calabresi, Gary Lawson
Notre Dame Law Review
Justice Scalia is famous for his strong rule orientation, best articulated in his 1989 article, The Rule of Law as a Law of Rules. In this Article, we explore the extent to which that rule orientation in the context of constitutional interpretation is consistent with the Constitution’s original meaning. We conclude that it is far less consistent with the Constitution than is generally recognized. The use of standards rather than rules is prescribed not only by a few provisions in the Bill of Rights and the Fourteenth Amendment but also by key aspects of the 1788 constitutional text. The executive …
Seeking Common Ground In The Abortion Regulation Debate,
2014
Notre Dame Law School
Seeking Common Ground In The Abortion Regulation Debate, Jessica Arden Ettinger
Notre Dame Law Review
This Note argues that requiring abortion clinics to adhere to the same standards as ambulatory surgical centers is unconstitutional, at least in the context of those clinics that provide only medication abortion, because it unduly burdens a woman’s right to choose whether to obtain an abortion. Although there may be a rational basis to require abortion clinics offering surgical abortion procedures to meet surgical facility standards, no such basis attends the imposition of those requirements on clinics that provide nonsurgical services. Given the number of clinics that continue to close in the face of this new regulatory legislation—which significantly reduces …
Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory,
2014
St. John's University School of Law
Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Marc O. Degirolami, Kevin C. Walsh
Notre Dame Law Review
Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson—in the popular press, in law review articles, and in books—have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that …
Against Coherence In Statutory Interpretation,
2014
Georgetown University Law Center
Against Coherence In Statutory Interpretation, John David Ohlendorf
Notre Dame Law Review
A long tradition in legal theory views the judicial role as centrally including the duty to make the entire body of law “speak with one voice.” This coherence ideal permeates much of the law of statutory interpretation, but one body of doctrine that it has particularly influenced is the set of standards that federal courts use to determine when a newly enacted statute overrides preexisting legal rules. Determining whether Congress implicitly intends to preempt state law, repeal previous legislation, or displace federal common law is an increasingly important part of the “ordinary diet of the law.” And although, this Article …
Courts Cap The "Trade": Regulation Of Competitive Markets When Courts Overturn State And Federal Cap-And-Trade Regulation,
2014
Suffolk University Law School
Courts Cap The "Trade": Regulation Of Competitive Markets When Courts Overturn State And Federal Cap-And-Trade Regulation, Steven Ferrey
West Virginia Law Review
No abstract provided.
Stuck Between A Lump Of Coal And A Hard Place: The Mine Safety And Health Administration's Struggle With Due Process And America's Coal Industry,
2014
Appalachian School of Law
Stuck Between A Lump Of Coal And A Hard Place: The Mine Safety And Health Administration's Struggle With Due Process And America's Coal Industry, Patrick R. Baker
West Virginia Law Review
No abstract provided.
Intellectual Origins Of (Modern) Substantive Due Process, The,
2014
University of Missouri School of Law
Intellectual Origins Of (Modern) Substantive Due Process, The, Joshua D. Hawley
Faculty Publications
Almost fifty years after the Supreme Court revived the doctrine, substantive due process remains a puzzle. Detractors insist it is nothing more than judicial policy making. Defenders say it accords with the deepest values of the Constitution. But on all sides, the present scholarly debate suffers from an impoverished understanding of modern substantive due process's intellectual history, which has led to an impoverished understanding of the doctrine's core normative content. It is time for a revisionist turn. This Article supplies that turn by excavating the intellectual origins of modern substantive due process and relating that history to the doctrine's development. …
Sharing Stupid $H*T With Friends And Followers: The First Amendment Rights Of College Athletes To Use Social Media,
2014
Texas A&M University School of Law
Sharing Stupid $H*T With Friends And Followers: The First Amendment Rights Of College Athletes To Use Social Media, Meg Penrose
Faculty Scholarship
This paper takes a closer look at the First Amendment rights of college athletes to access social media while simultaneously participating in intercollegiate athletics. The question posed is quite simple: can a coach or athletic department at a public university legally restrict a student-athlete's use of social media? If so, does the First Amendment provide any restraints on the type or length of restrictions that can be imposed? Thus far, neither question has been presented to a court for resolution. However, the answers are vital, as college coaches and athletic directors seek to regulate their athletes in a constitutional manner.
The Limits Of Enumeration,
2014
University of Michigan Law School
The Limits Of Enumeration, Richard A. Primus
Articles
According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internallimits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police …
A Tale Of Two (And Possibly Three) Atkins: Intellectual Disability And Capital Punishment Twelve Years After The Supreme Court's Creation Of A Categorical Bar,
2014
Cornell Law School
A Tale Of Two (And Possibly Three) Atkins: Intellectual Disability And Capital Punishment Twelve Years After The Supreme Court's Creation Of A Categorical Bar, John H. Blume, Sheri Lynn Johnson, Paul Marcus, Emily C. Paavola
Cornell Law Faculty Publications
This article examines empirically the capital cases decided by the lower courts since the United States Supreme Court created the categorical ban against the execution of persons with intellectual disability twelve years ago in the Atkins decision.
Dynamic Surveillance: Evolving Procedures In Metadata And Foreign Content Collection After Snowden,
2014
Roger Williams University School of Law
Dynamic Surveillance: Evolving Procedures In Metadata And Foreign Content Collection After Snowden, Peter Margulies
Law Faculty Scholarship
No abstract provided.
How Wartime Detention Ends,
2014
Benjamin N. Cardozo School of Law
How Wartime Detention Ends, Deborah N. Pearlstein
Cardozo Law Review
No abstract provided.
Passive Takings: The State's Affirmative Duty To Protect Property,
2014
Vanderbilt Law School
Passive Takings: The State's Affirmative Duty To Protect Property, Christopher Serkin
Michigan Law Review
The purpose of the Fifth Amendment’s Takings Clause is to protect property owners from the most significant costs of legal transitions. Paradigmatically, a regulatory taking involves a government action that interferes with expectations about the content of property rights. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be and that governments can violate the Takings Clause by failing to act in the face of a changing world. This argument represents much more than a minor refinement of takings law because recognizing governmental liability for failing to act means …
November 30, 2014: More Reasons The Democratic Party Coalition Collapsed,
2014
Duquesne University
November 30, 2014: More Reasons The Democratic Party Coalition Collapsed, Bruce Ledewitz
Hallowed Secularism
Blog post, “More Reasons the Democratic Party Coalition Collapsed“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
November 26, 2014: Pope Tells Haggard Europe That It Is In Need Of Cultural Renewal,
2014
Duquesne University
November 26, 2014: Pope Tells Haggard Europe That It Is In Need Of Cultural Renewal, Bruce Ledewitz
Hallowed Secularism
Blog post, “Pope Tells Haggard Europe that it is in Need of Cultural Renewal“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
