State Constitutions And Individual Rights: Conceptual Convergence In School Finance Litigation,
2011
University of Kentucky College of Law
State Constitutions And Individual Rights: Conceptual Convergence In School Finance Litigation, Scott R. Bauries
Law Faculty Scholarly Articles
This Article begins by reviewing Wesley Newcomb Hohfeld's “fundamental conceptions” and expanding his theory to the arena of state constitutional rights, building on recent work by other scholars. From this foundation, it moves to a discussion of the sources of rights to education. The Article then examines the text of relevant state constitutional provisions, as well as the ever-changing landscape of school finance litigation, the principal vehicle through which litigants assert constitutional claims based on ostensible education rights. Next, it systematically analyzes the population of reported cases from the highest state courts to identify Hohfeldian conceptions of education rights held …
Searching For Equality: Equal Protection Clause Challenges To Bans On The Admission Of Undocumented Immigrant Studies To Public Universities,
2011
University of South Carolina - Columbia
Searching For Equality: Equal Protection Clause Challenges To Bans On The Admission Of Undocumented Immigrant Studies To Public Universities, Danielle R. Holley-Walker
Faculty Publications
No abstract provided.
Congressional Authority To Interpret The Thirteenth Amendment.,
2011
Loyola University School of Law
Congressional Authority To Interpret The Thirteenth Amendment., Alexander Tsesis
Faculty Publications & Other Works
No abstract provided.
Methods And Materials In Constitutional Law: Some Thoughts On Access To Government Information As A Problem For Constitutional Theory And Socio-Legal Studies.”,
2011
Loyola University Chicago
Methods And Materials In Constitutional Law: Some Thoughts On Access To Government Information As A Problem For Constitutional Theory And Socio-Legal Studies.”, Barry Sullivan
Faculty Publications & Other Works
To be subject to law, Hobbes argued, is to be deprived of liberty, as we understand it. In this respect, democratic governments are no different from others. Hobbes's insight has not caused us to abandon our commitments to democracy, but it still challenges us to think hard about the nature of representative government, the nature of citizenship in a democratic society, and the conditions necessary for fulfilling the promise of democratic citizenship. Two recent trends are evident. Some citizens have embraced a more active sense of citizenship, which necessarily entails a more insistent need for information, while governments have insisted …
An In Depth Look At Gonzales V. Raich: The History Of Medical Marijuana And The Commerce Clause,
2011
Claremont McKenna College
An In Depth Look At Gonzales V. Raich: The History Of Medical Marijuana And The Commerce Clause, Rory S. Baird
CMC Senior Theses
The Supreme Court case, Gonzales v. Raich (2005), ruled medical marijuana use, authorized by the State of California, was subject to federal prosecution and regulation under the interstate commerce clause.
Comparing And Contrasting The Constitutional Approaches Of Justice Scalia And Justice Breyer Through The Pending Supreme Court Case Schwarzenegger V Entertainment Merchants Association,
2011
Claremont McKenna College
Comparing And Contrasting The Constitutional Approaches Of Justice Scalia And Justice Breyer Through The Pending Supreme Court Case Schwarzenegger V Entertainment Merchants Association, Katherine E. Moran Ms.
CMC Senior Theses
The aim of this thesis is to explore the differences and similarities between Justice Antonin Scalia’s textualist approach to interpreting the Constitution and Justice Stephen Breyer’s Living Constitution approach (also called the evolutionist approach) by applying these disparate legal theories to Schwarzenegger v Entertainment Merchants Association, a case currently pending before the Supreme Court whose resolution centers on the interpretation of the First Amendment. The textualist approach relies primarily on interpreting the original meaning of the text of the Constitution, and attempting to decide cases in a way that is faithful to an amendment’s words as written (Rossum et …
Judging The Justices: A Critical Analysis Of Citizens United V. Federal Election Commission,
2011
Claremont McKenna College
Judging The Justices: A Critical Analysis Of Citizens United V. Federal Election Commission, Cassandra Gurrola
CMC Senior Theses
This thesis examines the recently decided Supreme Court case Citizens United v. Federal Election Commission. The case regards campaign finance reform, and has raised significant controversy recently. This thesis will evaluate the arguments from both the dissent and the majority opinions, contextualize these arguments with respect to the history of campaign finance reform and the history of the legislation with regard to corporations, and will ultimately pass judgment on whether the Court was correct in its decision. Implications for the post-Citizens world will also be considered.
Powers Of War: President Versus Congress,
2011
Claremont McKenna College
Powers Of War: President Versus Congress, Jordan D. Santo
CMC Senior Theses
Before the United States Constitution was ratified there was much debate about what war powers the executive and legislative branches should hold. After much deliberation it was decided that the power to declare war would fall under the control of Congress. But as time passed, control over initiating military action began to shift from Congress to the President. This thesis examines the shift of power from the legislature to the President. The thesis explains the difference between a declaration of war, an authorization of force, as well as using the military as a police force. It examines the precedents set …
Legal Interpretation: Taking Words Seriously,
2011
Claremont McKenna College
Legal Interpretation: Taking Words Seriously, Allison W. Scott
CMC Senior Theses
This thesis examines the consequences of taking a conversational approach to legal interpretation. This is meant to contrast with and improve the argument given in Ronald Dworkin's Law's Empire.
Students' Fourth Amendment Rights In Schools: Strip Searches, Drug Tests, And More,
2011
Elisabeth Haub School of Law at Pace University
Students' Fourth Amendment Rights In Schools: Strip Searches, Drug Tests, And More, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
At the end of June 2009, the Supreme Court decided Safford Unified School District No. 1 v. Redding, a case involving the strip search of a thirteen-year-old girl at an Arizona middle school. Thus, the Court has now decided four cases regarding public school students' Fourth Amendment rights while at school and the time is ripe to take stock of this jurisprudence as a whole. The following discussion provides such an overview. As an initial matter, it is useful to divide the Court's four Fourth Amendment cases into two categories: (1) cases involving suspicion-based searches of individual students, such as …
Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions,
2011
Elisabeth Haub School of Law at Pace University
Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
The Article's first two parts discuss the extent to which schools can legally restrict hostile student speech about school officials, should they choose to do so. Part I examines how courts have traditionally approached hostile student speech about school officials when it occurs at school, and Part II then considers how courts have been analyzing the issue when it moves off campus. In the course of this discussion, the Article identifies three key categories of such speech: (1) speech that arguably threatens toward a school official; (2) speech that is primarily vulgar about a school official; and (3) the most …
Taking Supremacy Seriously: The Contrariety Of Official Immunities,
2011
Elisabeth Haub School of Law at Pace University
Taking Supremacy Seriously: The Contrariety Of Official Immunities, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
Immunities from suit, whether for governments or government officials, occupy a semi-sacred place in our jurisprudence. Trumpeting sovereign immunity, state and federal governments have long asserted that they are not subject to suit unless they have consented, and the courts have supported them. The U.S. Supreme Court has also created common law immunities for government officials and municipalities. Both kinds of immunity rest on a pervasive misunderstanding of English legal history and a convenient disinclination to consider the distinctive history and political philosophy that underlies the federal government. This Article does not examine the nuances of the official and municipal …
An Equal Rights Amendment To Make Women Human,
2011
Pace Law School
An Equal Rights Amendment To Make Women Human, Ann Bartow
Elisabeth Haub School of Law Faculty Publications
Though the Fourteenth Amendment' provides women with partial legal armament (a dull sword, a small shield), equal protection requires something twice as powerful in the form of a Twenty-Eighth Amendment that would expressly vest women with equal rights under the law. The Fourteenth Amendment has completed only half of the job.
Legal Realism, Innate Morality, And The Structural Role Of The Supreme Court In The U.S. Constitutional Democracy,
2011
Elisabeth Haub School of Law at Pace University
Legal Realism, Innate Morality, And The Structural Role Of The Supreme Court In The U.S. Constitutional Democracy, Karl S. Coplan
Elisabeth Haub School of Law Faculty Publications
The classical rationale for judicial review of the constitutionality of legislative and executive acts is based on a deterministic assumption about the nature of constitutional legal rules. By the early twentieth century however; American legal realists persuasively questioned the determinancy of law in general and posited that indeterminate cases were decided by judicial intuitions of fairness. Social science research has discovered that self-identified liberals and conservatives predictably place different relative values on different shared moral intuitions. At the same time, neurological research suggests that humans and primates implement "decisions" before the cognitive parts of the brain are even aware that …
Making Executive Privilege Work: A Multi-Factor Test In An Age Of Czars And Congressional Oversight ,
2011
Cleveland State University
Making Executive Privilege Work: A Multi-Factor Test In An Age Of Czars And Congressional Oversight , Kenneth A. Klukowski
Cleveland State Law Review
This Article begins in Part II by exploring a recent executive privilege case between the White House and Congress. Part III then explains the constitutional rationale for executive privilege by surveying the tension between Congress's Article I powers and the President's Article II powers. Part IV then explains modern executive privilege doctrine and the different forms of executive privilege, and also proposes a new multi-factor analysis to be incorporated into the current test. Part V moreover explains why the courts should reject both branches' arguments on these issues in favor of a third approach. Part VI then ends with the …
Comparative Empiricism And Police Investigative Practices,
2011
Vanderbilt University Law School
Comparative Empiricism And Police Investigative Practices, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In the search and seizure context, the United States is much more heavily wedded to warrants and exclusion than European countries and in the interrogation setting requires more robust warnings than most nations in Europe. Comparative empiricism is an empirical assessment of the relative effectiveness of these types of differences between nations regulatory regimes. In the law enforcement context, this type of assessment might be the only realistic means of determining the combination of mechanisms that best protects against government over-reaching without unduly stymying good police-work. Domestic research that attempts to explore differing regulatory approaches either occurs in experimental settings …
Sigtarp: A Problem In Name Only?,
2011
Washington and Lee University School of Law
Sigtarp: A Problem In Name Only?, Adam F. Scales
Washington and Lee Law Review
No abstract provided.
Will We Finally See Courtroom Debate?,
2011
New York Law School
Will We Finally See Courtroom Debate?, Arthur S. Leonard
Other Publications
No abstract provided.
State Constitutionalism: State-Court Deference Or Dissonance?,
2011
Western New England University School of Law
State Constitutionalism: State-Court Deference Or Dissonance?, Arthur Leavens
Faculty Scholarship
This Article focuses on the debate concerning state constitutional expansion of criminal-procedure protections. It examines two such rights: (1) the protection against unreasonable searches and seizures; and (2) the right to the assistance of counsel in defending a criminal case. Each of these rights is embodied in both the federal and most, if not all, state constitutions. Each right is thus doubly applicable to the states, first, through the federal version by virtue of its incorporation into the Fourteenth Amendment’s due process protection and, second, through the state constitution’s version of the cognate right. So focused, the question is, what …
No Virtue In Passivity: The Supreme Court And Ali Al-Marri,
2011
Western New England University School of Law
No Virtue In Passivity: The Supreme Court And Ali Al-Marri, Bruce K. Miller
Faculty Scholarship
This Article discusses the case of Al-Marri v. Spagone, which the U.S. Supreme Court unjustifiably dismissed as moot on March 6, 2009. By dismissing this appeal, the Court ignored its duty to determine whether the military detention of a non-citizen residing lawfully in the United States was authorized by law. And that failure has in turn contributed significantly, and unnecessarily, to the cloud of legal uncertainty which now hovers over the preventive detention measures adopted and proposed by the Obama Administration.
