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June 24, 2018

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Looking for PR & Finance Directors -

Tuesday, April 26, 2016

Elections 2016-2017 -

Tuesday, April 26, 2016

Why the ERA Failed: Comfort Over Content in the Fight for Women’s Rights -

Thursday, May 5, 2016

The Extent to Which Parents Should Regulate Their Children’s Abortions -

Thursday, May 5, 2016

Human Rights in a Reclusive Context: North Korea -

Thursday, May 5, 2016

Separation without Justification: Parental Rights of Pregnant Juveniles in Correctional Facilities -

Thursday, May 5, 2016

U.S. Asylum after September 11: Failures of the PATRIOT and ID Acts -

Thursday, May 5, 2016

Genomicare: The Affordable Care Act of 2023 -

Thursday, May 5, 2016

“Social Worker with a Gun:” The Role of Policing in Harm Reduction Among Addicts -

Tuesday, April 26, 2016

Pulling Principles Out of Thick Air: The Incorporation of Customary International Law Under the Alien Tort Claims Act of 1789 After Sosa v. Alvarez-Machain -

Tuesday, April 26, 2016

Schuette v. BAMN: Moving Toward a Colorblind Constitution -

Tuesday, April 26, 2016

American Women in Combat: What Israel and Canada Can Teach the United States About Integration -

Tuesday, April 26, 2016

Now Accepting Submissions! -

Tuesday, April 26, 2016

Join WULR! -

Monday, April 25, 2016

The Intersection of Lawlessness and Justice: Police Misconduct -

Tuesday, March 3, 2015

A Recommendation for Eliminating Lifetime Tenure for Federal Judges -

Thursday, January 1, 2015

Admissions Panel A Great Success! -

Sunday, November 9, 2014

Law School Admissions Panel -

Monday, November 3, 2014

VICTORY OF THE MINORITY: The Jehovah’s Witnesses’ Fight for Constitutional Rights -

Monday, June 30, 2014

VACATING CONVICTIONS: The Efficacy of One Form of Relief from the Consequences of Conviction -

Monday, June 30, 2014

ORIGINALISM AND AFFIRMATIVE ACTION

WULR Volume VI, Issue III, Spring 2013

Originalism and Affirmative Action

Bradley Silverman
Brown University

ABSTRACT
Last fall, the U.S. Supreme Court heard Fisher v. Texas, a case
concerning the affirmative action policy at the University of Texas.
The decision that the Court hands down later this term could shape
affirmative action policy and jurisprudence for decades to come. At
least two of the Justices call themselves originalists, saying that the
Constitution should be interpreted in light of its original
understanding. But what does originalism have to say about
affirmative action? In this study, I argue that contrary to some
expectations, both the original intent and original meaning inherent
in the 14th Amendment’s Equal Protection Clause support reading it
to allow states to implement affirmative action policies. Although the
Clause is often assumed to mandate colorblindness in the law, the
passage of laws affirmatively benefiting African Americans as a
racial group by the same Congresses that passed the Reconstruction
Amendments indicates that the framers of those amendments did not
consider affirmative action to violate equal protection of the law.
Furthermore, a unitary reading of the Reconstruction Amendments
supports understanding the Equal Protection Clause to prohibit not
simply race-conscious laws, but laws that connote stigma or
inferiority upon a racial group. Because affirmative action does not
imply the inferiority of whites even though it benefits African
Americans, it does not violate the 14th Amendment.

To continue reading this article please refer to our “Ordering” tab and purchase your hard copy of this publication, or download an online copy from our “Issues” tab. Thank you.

BIRTH CONTROL AND THE LAW IN THE UNITED STATES: An Historical Approach

WULR Volume VI, Issue III, Spring 2013

Birth Control and the Law in the United States: An Historical Approach

Tierney O’Rourke
Stanford University

Abstract
From slavery to Jim Crow, the Treaty of Paris to the Dawes Severalty Act, the Alien and Sedition Acts to the Patriot Act, and the Comstock Acts to limitations of the 14th and 15th Amendments to the Constitution, American law has, at one time or another, prohibited African Americans, Native Americans, immigrants, and women from fully enjoying freedom. During the first two hundred years of United States history, women were largely relegated to the home, exemplifying ideals of republican motherhood, domesticity, and moral superiority – but rarely republican citizenship. This social division, however, placed the burden of childbirth and childrearing solely on women. Due to changing economic and social pressures, a growing desire to limit family size took root, and couples began seeking contraceptive methods. While contraception allowed women more freedom, many members of early American society saw this as an affront to traditional values of domesticity. Thus, laws regulating contraceptives appeared as a means to preserve traditional values, and thereby excluded women from fully experiencing American freedom. As women increasingly moved into the public sphere, the need for contraceptive options intensified, fueling the efforts of Margaret Sanger and other birth controllers. This paper traces the legal history of the birth control movement, ultimately concluding that the fight for contraceptive rights, then, exemplifies the larger trend in United States history of limiting, and expanding, the blessings of liberty in a legal context.

To continue reading this article please refer to our “Ordering” tab and purchase your hard copy of this publication, or download an online copy from our “Issues” tab. Thank you.

THE SUPERFLUOUS CLAUSE: Free Exercise Re-Envisioned for the 21st Century

WULR Volume VI, Issue III, Spring 2013

The Superfluous Clause: Free Exercise Re-Envisioned for the 21st Century

Christina Goswiller
Stanford University

Abstract:

In order to reflect the plurality of beliefs in contemporary American society, and the social, political, and cultural transformations the country has undergone since its founding, the right to free exercise of religion needs to be re-envisioned. Where free exercise jurisprudence has largely shown that there is no fair or unbiased way of assessing whether a religious claim is religious or sincere, focused and specific inquires into equal treatment are preferable to broad constitutional definitions of religion. Since the crux of the difficulty surrounding the clause results from its religious subject matter, a more appropriate standard would be to locate free exercise under the heading of expressive conduct, akin to freedom of speech. Such an analysis of the clause would give equal consideration and accommodation to minority interests, increasing the protection given to nontraditional religious beliefs or practices, or those that stem from equally strong nonreligious moral convictions. The “de-religionization” of the clause frees judges from the daunting task of defining religion, judging the sincerity of religious beliefs, corresponding practices, and from violating the establishment clause.

Ultimately, a more liberal understanding and application of the free exercise clause in line with expressive conduct standards would most likely empower minorities and curb the influence of prevalent religious organizations. Likewise, a principle similar to the John Locke’s “no harm rule”, rearticulated by John Stuart Mills as the “harm principle”, would serve to protect all forms of expression that do not substantially interfere with the government’s duties or objectives in maintaining order and promoting social welfare. Leaving free exercise both in substance and enforcement open to ongoing public discussion and policy debates will ensure that the clause appropriately responds to temporal, cultural, or religious realignments. A flexible and secular understanding of the clause, where accommodation rests on the particular facts of each case and the unique nature of each claim, creates a fairer standard more in keeping with the equal protection clause and the spirit of American democracy.

To continue reading this article please refer to our “Ordering” tab and purchase your hard copy of this publication, or download an online copy from our “Issues” tab. Thank you.

 

INSANITY AND CRIME

WULR Volume VI, Issue III, Spring 2013

The Mystery and Complexity of Defending the Mentally Ill

Ariana Cernius
Harvard College

ABSTRACT
The defense of not guilty by reason of insanity has long been a subject of controversy. Many people dislike that this option is available in the American justice system because they believe it allows criminals to escape consequences for their actions. As a result, there has been much public outcry for a reformed version or alternative to the insanity defense. Alternatives include the reduction in the number of successful insanity defenses, as well as an intermediate verdict for those defendants who were clearly mentally ill at the time of the crime, but who did not meet all the criteria for an insanity plea. Although there is a need for an alternative, this paper argues that “Guilty But Mentally Ill,” the alternative verdict adopted by most states so far, is flawed and ultimately inappropriate to fill this role. GBMI has several theoretical flaws and is a difficult concept to understand for most juries, especially when juxtaposed with the insanity defense. Indeed, there should be an alternative verdict to the insanity defense, but this article argues that whatever form the alternative takes, it should be more transparent than GBMI’s services and implications.

To continue reading this article please refer to our “Ordering” tab and purchase your hard copy of this publication, or download an online copy from our “Issues” tab. Thank you.