Supreme Court Criminal Law Jurisprudence - October 2008 Term,
2010
Touro Law Center
Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein
Scholarly Works
No abstract provided.
The Death Of Suspicion,
2010
Touro Law Center
The Death Of Suspicion, Fabio Arcila Jr.
Scholarly Works
This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in …
Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework,
2010
Touro Law Center
Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine
Scholarly Works
In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and …
Untold Stories Of Goldman V. Weinberger: Religious Freedom Confronts Military Uniformity,
2010
Touro Law Center
Untold Stories Of Goldman V. Weinberger: Religious Freedom Confronts Military Uniformity, Samuel J. Levine
Scholarly Works
In 1986, the United States Supreme Court handed down a 5-4 decision ruling that Air Force regulations prohibiting Simcha Goldman from wearing a yarmulke while in uniform did not violate Goldman’s First Amendment right to the free exercise of religion. The Court’s majority opinion, which accepted the government’s assertion that allowing Goldman to wear a yarmulke would unduly upset important military interests, drew unusually harsh responses from both dissenting justices and legal scholars. Yet, upon closer examination, perhaps what stands out most about the events surrounding the Goldman decision is the untold story of the case, which differs in significant …
Religion-Based Claims For Impinging On Queer Citizenship,
2010
Allard School of Law at the University of British Columbia
Religion-Based Claims For Impinging On Queer Citizenship, Bruce Macdougall, Donn Short
All Faculty Publications
Competing claims for legal protection based on religion and on sexual orientation have arisen fairly frequently in Canada in the past decade or so. The authors place such competitions into five categories based on the nature of who is making the claim and who is impacted, the site of the competition, and the extent to which the usual legal and constitutional norms applicable are affected. Three of the five categories identified involve a claim that a religion operate in some form in the public area so as to impinge on the usual protection of equality on the basis of sexual …
Unequal To The Task: ‘Kapp’Ing The Substantive Potential Of Section 15,
2010
Allard School of Law at the University of British Columbia
Unequal To The Task: ‘Kapp’Ing The Substantive Potential Of Section 15, Margot Young
All Faculty Publications
This paper reviews the Supreme Court of Canada’s interpretation of s. 15 as a guarantee of substantive equality focusing on R. v. Kapp, a recent key section 15 case, as seen in perspective of Andrews v. Law Society of British Columbia (1989). R. v. Kapp (2008) brings together a dense complex of issues involving equality, affirmative action, race and Aboriginal rights. This paper takes on only a piece of this tangle – focusing on three issues that speak to the Court’s continuing failure to engage fully with the promise of Andrews’ rejection of a formal equality framework for section 15. …
The Ioc Made Me Do It: Women's Ski Jumping, Vanoc And The 2010 Winter Olympics,
2010
Allard School of Law at the University of British Columbia
The Ioc Made Me Do It: Women's Ski Jumping, Vanoc And The 2010 Winter Olympics, Margot Young
All Faculty Publications
This case comment discusses the judicial decisions in Sagen v. VANOC regarding the constitutional challenge brought by women ski jumpers to their exclusion from the 2010 Vancouver Winter Olympics. While the claimants argued that the constitutional equality provision (section 15 of the Canadian Charter of Rights and Freedoms) had been infringed, the BC courts' decisions focussed on the novelty of the state action problem. At least one level of court accepted that the exclusion was discriminatory but the challenge failed because the decision to exclude lay within the power of the International Olympic Committee, an entity beyond the ambit of …
The Argument For Same-Sex Marriage (Debate),
2010
Indiana University Maurer School of Law
The Argument For Same-Sex Marriage (Debate), Deborah A. Widiss, Nelson Tebbe, Shannon Gilreath
Articles by Maurer Faculty
Perry v. Schwarzenegger, in which a federal district court held California's ban on same-sex marriages unconstitutional, is set for expedited review in the Ninth Circuit; many argue that the case will ultimately be decided by the Supreme Court. The arguments for and against the constitutionality of such statutes are thus at a fever pitch. In an article published earlier this year, Professors Nelson Tebbe and Deborah Widiss argued that marriage rights are best conceived of as an issue of equal access, rather than one of equal protection or substantive due process. Nelson Tebbe & Deborah A. Widiss, Equal Access and …
Character Counts: The "Character Of The Government Action" In Regulatory Takings Actions,
2010
Touro Law Center
Character Counts: The "Character Of The Government Action" In Regulatory Takings Actions, Michael Lewyn
Scholarly Works
No abstract provided.
Litigation, Integration, And Transformation: Using Medicaid To Address Racial Inequities In Health Care,
2010
Saint Louis University School of Law
Litigation, Integration, And Transformation: Using Medicaid To Address Racial Inequities In Health Care, Ruqaiijah Yearby
All Faculty Scholarship
Using a public health policy perspective, this article examines the persistence of racial inequities in nursing homes and prescribes a solution to address these inequities. I use empirical data to prove the persistence of racial inequities in health care, analyze the government policies that allow racial inequities to continue, and provide a solution of regulatory integration. Specifically, I propose that civil rights enforcement be integrated with the nursing home enforcement system, which has been aggressively enforced and monitored. There are many strategies that may lead to the adoption of this system. One such strategy is using the Medicaid Act to …
Religion, Science And The Secular State: Creationism In American Public Schools,
2010
Indiana University Maurer School of Law
Religion, Science And The Secular State: Creationism In American Public Schools, Gene Shreve
Articles by Maurer Faculty
This Article examines the current debate whether creationism may be taught in American schools given the constraints of the Establishment Clause of the First Amendment of the U.S. Constitution. The author considers some of the social and political consequences of the U.S. Supreme Court's leading cases. The article concludes by questioning whether the Supreme Court has succeeded in justifying its restrictive decisions in this controversial area.
The Future Of Section 2 Of The Voting Rights Act In The Hands Of A Conservative Court,
2010
Indiana University Maurer School of Law
The Future Of Section 2 Of The Voting Rights Act In The Hands Of A Conservative Court, Luis Fuentes-Rohwer
Articles by Maurer Faculty
This Essay argues that the future of the majority-minority district is in peril, as a conservative majority on the Court stands poised to strike down section 2 of the Voting Rights Act. When the Court takes up the constitutionality of Section 2, binding precedent will play a secondary role at best. Instead, the Justices’ policy goals and ideological preferences - namely, their personal disdain for the use of race in public life - will guide the Court’s conclusion. In this vein, Justice Kennedy holds the fate of the Act in his hands. To be clear, this Essay is not trying …
Are National Class Actions Constitutional?: A Reply To Hogg And Mckee,
2010
Osgoode Hall Law School of York University
Are National Class Actions Constitutional?: A Reply To Hogg And Mckee, Janet Walker
Osgoode Hall Law Journal
This article argues that there is no constitutional impediment to the certification of multijurisdictional class actions by provincial superior courts, and no constitutional requirement to confine plaintiff classes to those in which each claim has a real and substantial connection to the forum. Neither the text of the Constitution nor the constitutionally mandated rules of the conflict of laws restrict court jurisdiction in this way. Rather, the principles of order and fairness require Canadian courts to exercise jurisdiction over multi-jurisdictional class actions in a way that maximizes the objectives of class actions, and minimizes the incidence of overlapping classes and …
What Are We Doing To The Children?: An Essay On Juvenile (In)Justice,
2010
Duke Law School
What Are We Doing To The Children?: An Essay On Juvenile (In)Justice, Michael E. Tigar
Faculty Scholarship
No abstract provided.
