И наступит тьма: Конституция США теперь не защищает право на аборт

Roe v Wade, Dobbs, and the Future of Graduate Medical Education.

Clinical Practice Guidelines and Recommendations: Room for Dissent?

The Federal Employees Liability Reform and Tort Compensation Act - better known as the Westfall Act - was rushed into law in 1988 to avoid what was expected to be a crisis in exposing federal workers to court suits. The law was intended to overturn the Supreme Court's January 1988 decision in Westfall v. Erwin, which greatly expanded the potential liability of legislative and judicial employees as well as employees of the executive branch. Once faced by such a threat - and perhaps especially because the decision threatened congressional workers - Congress acted promptly. By November, Congress had held hearings, the House and Senate had agreed on language of a new bill, and President Reagan had signed the bill into law. Any gridlock that existed on this matter between the executive and legislative branches simply evaporated when the Court handed down its ruling. The law's purpose is ...to protect federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of federal employees with an appropriate remedy against the United States (sec. 2[b]). The intention was to overturn the Westfall decision and thereby restore protections to executive-branch workers, extend those protections to legislative and judicial workers, and reinstitute the procedures by which persons who were harmed could bring suit against the government rather than against individual workers. Seldom is anything as easy as it seems. The law may have achieved its key purposes, but numerous other problems arose in the process. An Overview of Torts A tort is a civil wrong independent of contract, meaning that the harm did not stem from a breach of the contract. Constitutional torts involve harm stemming from violation of one's constitutional rights. Since the Supreme Court's landmark decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), federal employees can be held personally liable for violating someone's constitutional rights. In the Bivens case, narcotics officers made a warrantless search of a residence in the early morning. Cases commonly arise in which constitutional torts are alleged (see the Blohm; Krueger, Lutz; Rauccio; and Saul cases).(1) The Supreme Court ruled in 1994 that the Bivens remedy can only be used in suits against individuals and not in suits against the government (Federal Deposit Insurance Corporation v. Meyer). A second type of tort and the one of concern in this article is the common law tort. These torts involve such behavior as negligence, defamation, harassment, and emotional distress. The third type is the federal statutory tort, in which a person's rights under a federal law are abridged (Anderson and Pellett, 1990). It is common for people to file suits that allege both constitutional and common law torts have been committed (Pelletier and Rallis). A single action or event, as in the case of assault, can be both a tort and a crime. The key mechanism for common law tort cases against the federal government is the Federal Tort Claims Act (FTCA) of 1946. The federal government has partially waived its sovereign immunity to allow suits against itself. Under this law, suits are filed in district courts which apply state tort law to the federal government as though it was an individual in the state where the alleged event occurred. As will be seen below, exceptions contained in the FTCA bar several types of suits against the government. Westfall v. Erwin All of the furor in Congress to write the Westfall Act and much of the legal maneuvering since its passage stem from William Erwin receiving soda ash burns in his eyes and throat while working as a civilian warehouseman at an army depot in Alabama. He and his wife sued Rodney Westfall, Erwin's superior, and other workers at the depot for negligence in the handling and storage of this toxic substance. Erwin contended the bags of soda ash should never have been stored in the warehouse, that the soda ash had been allowed to spill from bags, and that he had not been warned of their presence in the warehouse. …

When fifteen-year-old Gerald Gault of Globe, Arizona, allegedly made an obscene phone call to a neighbour, he was arrested by the local police, who failed to inform his parents. After a hearing in which the neighbour didn't even testify, Gault was promptly sentenced to six years in a juvenile boot camp--for an offence that would have cost an adult only two months. Even in a nation fed up with juvenile delinquency, that sentence seemed over the top and inspired a spirited defence on Gault's behalf. Led by Norman Dorsen, the ACLU ultimately took Gault's case to the Supreme Court and in 1967 won a landmark decision authored by Justice Abe Fortas. Widely celebrated as the most important children's rights case of the twentieth century, In re Gault affirmed that children have some of the same rights as adults and formally incorporated the Fourteenth Amendment's due process protections into the administration of the nation's juvenile courts. Placing this case within the context of its changing times, David Tanenhaus shows how the ACLU litigated Gault by questioning the Progressive Era assumption that juvenile courts should not follow criminal procedure. He then takes readers to the Supreme Court to fully explore the oral arguments and examine how the Court came to decide Gault , focusing on Justice Fortas's majority opinion, concurring opinions, Justice Potter Stewart's lone dissent, and initial responses to the decision. The book explores the contested legacy of Gault , charting changes and continuity in juvenile justice within the contexts of the ascendancy of conservative constitutionalism and Americans' embrace of mass incarceration as a penal strategy. An epilogue about Redding v. Safford --a 2009 decision involving a thirteen-year-old schoolgirl, also from Arizona, who was forced to undress because she was suspected of hiding drugs in her underwear--reminds us why Gault is of lasting consequence. Gault is a story of revolutionary constitutionalism that also reveals the tenacity of localism in American legal history. Tanenhaus's meticulous explication raises troubling questions about how local communities treat their children as it confirms the importance of the Supreme Court's decisions about the constitutional rights of minors.

In 1802, President Thomas Jefferson replied an address from committee of the Danbury Baptist Association. He thanked them for their esteem and approbation and used the opportunity respond longstanding Federalist and ministerial attacks on Jefferson's supposed atheism. Rather than express his own religious views, historians generally argue, Jefferson's response instead focused on the importance of protecting religious freedom. From political angle, this position strengthened the des between New England's dissenters and Jefferson's Republican party. From an intellectual perspective, it represented Jefferson's own deep commitment the separation of church and state. As he wrote in his letter the Baptists of Danbury, Connecticut, the first amendment of the federal constitution erected of separation between church and State.1In the twentieth century, ever since Justice Hugo Black invoked it in majority opinion in the 1947 case of Everson v. Board of Education, which upheld the legitimacy of using public funds for school buses for children attending Catholic schools, Jefferson's Danbury address has become touchstone for how the first amendment should be interpreted.2 How understand the wall metaphor has thus become major historical, political, and legal enterprise. It should not be surprising, then, that tempers flared when James H. Hutson, the chief of the Manuscript Division at the Library of Congress, chose lower the Supreme Court's wall in his reinterpretation of the Danbury address as part of Library of Congress 1998 exhibit. The ensuing debate focused on the meaning of Jefferson's wall. Hutson argues that historians and jurists are wrong read the wall metaphor literally. Instead, he suggests, the primary purpose of Jefferson's letter was political, conclusion he drew after an FBI lab uncovered phrases Jefferson had deleted from his original draft. The letter, Hutson writes, was an opportunity for Jefferson publicly rebut his critics and shore up the allegiance of dissenting religious groups in New England. If the letter was unreliable because of its political context, Hutson continues, perhaps we ought look at Jefferson's practices as statesman understand how committed he was the wall. Hutson then points out that Jefferson continuously breached the wall as an elected officeholder. He attended religious services in the U.S. House of Representatives while president and, following retirement, felt no compunction about attending services in the Albemarle County Courthouse. While president, he allowed various congregations use federal office buildings hold their own services. Clearly, Hutson concludes, Jefferson's wall was lower and more permeable than the wall that the Supreme Court has constructed over the course of the twentieth century.3Hutson's paper was seized upon by the Christian Coalition argue that it is a liberal myth that Jefferson intended for his words to be used as justification for expelling religious expression from the public square.4 In turn, twenty-four scholars signed paper written by Robert M. O'Neil and Robert S. Alley accusing Hutson's work of being unbalanced and flawed.5 As Hutson notes, Jefferson's wall metaphor has become a shorthand expression for two radically different, passionately held visions of church-state relations in the United States.6Hutson's argument was addressed by leading scholars in 1999 William and Mary Quarterly forum. Some supported Hutson's claim that the Supreme Court had erected higher, less permeable wall than Jefferson's. Thomas E. Buckley, for example, noted that Jefferson consistently made references God in his public addresses. If Jefferson had intended banish prayer or Christianity from the public sphere, Buckley wrote, he would not have used religious language himself. Others argued that our contemporary understanding of the wall is correct, and that Jefferson believed in strong and constantly fortified barrier preventing any contact between church and state. …

Why (and When) Judges Dissent: A Theoretical and Empirical Analysis

Through the examination of these cases, the authors provide readers with an understanding of the significant role that the Supreme Court performs in shaping the boundaries of governmental power and contours of individual rights and liberties. The review of these modern decisions is provided against a historical backdrop that affords perspective and enriched context. Selection of the landmark decision (Roe v. Wade) as a departure point makes the book particularly useful in understanding the Court's impact upon contemporary American society. Given the controversial nature of this decision, which recognized a woman's liberty to elect an abortion, it also serves as a portal for examining the points and counterpoints with respect to the Court's function. Treadlines during this period profile a Court that grew increasingly cautious in charting constitutional rights and liberties and equality principles and less amenable to unbridled expansion of federal power. Through processes of review that limit protected speech or reflect less concern when speech is burdened by regulation that is not content-based or does not target expression directly, for instance, the Court has imposed significant curbs upon the First Amendment. Overall, the Supreme Court has become increasingly assertive in reviewing congressional power to regulate in areas that fall within the historical province of the states. This work engenders an appreciation for how constitutional power, rights, and liberties are not a constant over time but works in progress that are subject to the ebb and flow of judicial philosophy. Written for a general audience and particularly accessible for non-law school students and non-lawyers, fact and summary boxes provide quick insight and understanding of cases. Entries include Craig v. Boren (1976), Illinois v. Gates (1983), Immigration and Naturalization Service v. Chadha (1983), Reno v. American Civil Liberties Union (1992), United States v. Virginia (1996), Grutter v. Bollinger (2003), Lawrence v. Texas (2003), Hamdi v. Rumsfeld (2004), and many others. In addition, a glossary defines key terms.

In his letter to Walter Hines Page dated 22 March 1899, Charles W. Chesnutt expressed dismay at the steady erosion of blacks' civil rights in turn-of-the-century America. Referring specifically to North Carolina's adoption of the grandfather clause that had been used to disenfranchise black male residents of several southern states, a the Supreme Court upheld in Williams v. Mississippi (1898), Chesnutt worried about the growing hostilities confronting black Americans. In language that displays mistrust of the jurisprudential wisdom of the nation's highest court, Chesnutt finds its to be but one more abuse of blacks: the Supreme Court of the United States is a dangerous place for a colored man to seek justice. He may go there with rights; he is apt to away with none at and with adverse shutting out even the hope of any future protection there; for the doctrine of stare decisis [the legal doctrine stipulating adherence to precedence] is as strongly intrenched [sic] there as the hopeless superiority of the Anglo-Saxon is in the Southern States. (To Be Author 121) As this passage makes clear, by the late 1890s, and especially following Plessy v. Ferguson (1896), Chesnutt, like many African Americans, found the Supreme Court tacitly sympathetic to racist southern legislation. Beginning with the Slaughterhouse Cases of 1873 and continuing up through Williams v. Mississippi, the Supreme Court proved unwilling to overturn state laws that, it argued, only made possible the infringement of constitutional rights but did not target any particular group to suffer discrimination (Sundquist 237, 421). By deferring to states' rights throughout post-Reconstruction, the Supreme Court in effect allowed the persistent and deliberate hollowing out of black civil rights gained in the Reconstruction amendments. For Chesnutt, the fact that the Supreme Court had upheld Mississippi's outrageously unjust and unconstitutional law travestied the promise of Emancipation and revealed the Court to be a place of disheartening mystification (To Be Author 121). That a black person, in seeking from the Supreme Court redress for maimed fights, might come away with none at all, demonstrated the Court's role in restoring the political and social conditions of a quasi-slavery (emphasis added). As Eric J. Sundquist describes, blacks faced a return to a second slavery without the Court's protection of their constitutional rights (228). Moreover, as Chesnutt's comment underscores, because of stare decisis, an adverse decision by the Supreme Court effectively [shut] out even the hope of any future protection, thus threatening not just to recuperate white oppression of blacks but to make it a permanent feature of Jim Crow America. The prospect of permanent confinement to a second-class status made post-Reconstruction America the nadir moment for blacks. (1) Lacking legal protection of their recently won civil rights, African Americans confronted the specter of the antebellum South. In the same year that Chesnutt wrote to Page, he published The Conjure Woman (1899), a collection of thematically related stories that depicted the conditions of slave life on several neighboring North Carolina plantations. Hoping to counter the plantation nostalgia popularized by writers such as Thomas Nelson Page and Thomas Dixon, Chesnutt appropriated the local color dialect story to feature the oppressive brutality of the Old South's peculiar institution. Through their representation of slavery's dehumanization of blacks, the stories deromanticize the bygone southern idyll and haunt the post-Reconstruction South with its repressed history. Chesnutt's representation of conjure as a black folk-belief system involving the supernatural and giving agency to black resistance has generated analyses of The Conjure Woman as gothic fiction. …

2016/53 Landmark decision by Austrian Supreme Court: Face veil ban for employees is lawful (AT) The Austrian Supreme Court has ruled that the general prohibition of Muslim face veils by an employer does not constitute unlawful discrimination. In this landmark decision, Austria’s Supreme Court expresses the view that an uncovered face is a prerequisite to proper communication. Thus, termination of employment by reason of an employee’s refusal to come to work unless she can wear a face veil is not unlawful under the Austrian Equal Treatment Act. Whether this rule also applies to other religious clothing such as headscarves remains to be seen.

The preceding Supreme Court decisions led to the following conclusions: firstly, although the Supreme Court in these decisions repeatedly insists that recourse to Islamic Shari'a is a matter of policy to be left entirely to the federal legislature, the Court repeatedly announced that all federal legislation should be derived from Islamic Shari'a. The Court thus adopted the Islamists position according to which any legislation violating the Shari'a dictates should be considered unconstitutional.66 Secondly, although, as mentioned, there was strong evidence of an apparent conflict between the Constitution and the laws dealt with by the Supreme Court in the aforementioned judgments, the Court was reluctant to declare the laws unconstitutional. This is accounted for by the Court's insistence on creating uniformity among these judgments. Greater conflict occurred between the Constitution and Articles 61 and 62 of Abu Dhabi Law than occurred between the Constitution and the Alcoholic Drinks Laws of Abu Dhabi and Sharjah. The fact that there was seen to be no conflict between the Constitution and Articles 61 and 62 naturally led the Supreme Court (for the purpose of creating uniformity among its judgments) to deny the existence of conflict between the Alcoholic Drinks Laws and the Constitution. Thirdly, the Supreme Court in interpreting and applying Article 7 of the Constitution in the judgments mentioned above, distinguished between civil and criminal matters. In answering the question of the legality of bank interest, the Court considered the application of the Shari'a as a matter of policy to be left to the legislature, and not for the judiciary to decide. Concerning the application of the Shari'a in criminal matters, the Court declared that the lower federal courts should apply the punishments prescribed by the Shari'a in Hudud offences. Indeed, practice in the UAE shows the application of Shari'a in the sphere of criminal matters only; it does not apply to commercial matters, especially in the case of applying interest in commercial law as proven by the Supreme Court in the Junatta Bank case. The roots of such a distinction can be found in the answer to the question, why was the application of Shari'a rules regarding Hudud offences made obligatory by the Supreme Court, while the application of the Shari'a rules affecting bank interest was not? The probable answer is that the Supreme Court has shied away from applying the Shari'a where it would threaten orderly economic development and the modernisation of its institutions.67 The application of Hudud punishments, by comparison, threatens no such disruption.

This research note is a replication of David W. Rohde's study entitled Policy Goals, Strategic Choice and Majority Opinion Assignments in the U.S. Supreme Court. In the original, Rohde offered a theory of the assignment of majority opinions, the primary hypothesis of which held that the opinion assigner will assign the majority opinion to himself or to the Justice whose position is closest to his own on the issue in question. Using all civil liberties cases decided by the Warren Court as the data set, Rohde found the hypothesis to be supported in the aggregate,, across issue areas and across individual assignees. This replication is undertaken to determine whether Rohde's primary hypothesis is supported when tested in a different empirical universe. The data used to test the primary hypothesis in this report are all economics cases decided by the Warren Court from 1959 to 1969. In this study, unlike the original, the primary hypothesis is found not to be supported. This result is consistent whether following Rohde's replication precisely or using a methodological variation described in the text.

Franklin D. Roosevelt appointed 10 justices to the U.S. Supreme Court - more than any president except Washington - and during his presidency from 1933 to 1945, the Court gained more visibility, underwent greater change, and made more landmark decisions than it had in its previous 150 years of existence. This collection examines FDR's influence on the Supreme Court and the Court's growing influence on American life.

Thurgood Marshall was unquestionably the greatest lawyer of the 20th century in the United States and perhaps the world. However, not too many years before Marshall successfully argued the 1954 Brown v. Board of Education of Topeka, Kansas case, which set the stage for the desegregation of all public education in the U.S., Marshall. himself had been denied admission to the University of Maryland Law School because of the color of his skin. Wounded but not defeated by this egregiously deliberate racial discrimination, he went on to excel as a superb law student at the Howard University Law School. There, Marshall was inspired by magnificent teachers and lawyers such as Charles Hamilton Houston. Upon obtaining his law degree, Marshall embarked on a remarkable career that included experiences as the general counsel of the National Association for the Advancement of Colored People (NAACP) and the nation's leading civil rights attorney, as the Solicitor General of the United States, as a judge on the United States Court of Appeals for the Second Circuit, and culminating as an Associate Justice on the Supreme Court of the United States for nearly a quarter of a century (Rowan, 1993).It is most appropriate that some of Marshall's most significant legal victories prior to Brown involved successful challenges to the racially discriminatory and exclusionary policies of major state public university law schools. In State of Missouri, ex. rel. v. Gaines (1938) and Sweatt v. Painter (1950), for example, Marshall achieved favorable decisions overturning the racial discriminatory and exclusionary practices of the then all-White law schools of the universities of Missouri and Texas, respectively. These victories were especially sweet ones for him given his own personal experiences of denial and rejection, based on race, in his pursuit of a legal education.It was not until 1974, fully two decades after its landmark decision in Brown, that the United States Supreme Court again faced the issue of racial discrimination in professional school education in DeFunis v. Odegaard. Significantly, and as would be expected, now-Justice Thurgood Marshall was among the dissenting voices in this case, which presented an opportunity for the Court to decide whether an affirmative action admissions policy adopted by the University of Washington Law School failed to meet the equal protection provisions of 14th Amendment. By a narrow 5-4 margin, however, the Court deemed the case moot, signalling that it was neither willing nor prepared to decide the first of the major post-Brown race discrimination cases in the realm of professional school and higher education.The DeFunis case involved a White male applicant, Mark DeFunis, who had graduated with distinction from college. After repeated unsuccessful efforts to obtain admission, DeFunis sued the University of Washington Law School and its chancellor in federal district court. He alleged that persons in recognized affirmative action classifications were admitted, despite their lower predicted first-year averages, because of their race or color.(1) As a White applicant, DeFunis claimed, he had been unconstitutionally denied admission in violation of his 14th Amendment right to equal protection. The Court, under the auspices of Associate Justice William Douglas, granted interlocutory relief to DeFunis. This allowed him to be admitted to and attend the law school while his case proceeded through the lower federal courts. By the time the matured case returned to the Supreme Court, DeFunis was in the final semester of his last and third year of the law degree program. Because his graduation was imminent and in all likelihood assured, the Court refused to hear the case on the merits, deeming it moot.By 1978, however, the situation had changed. In what has become perhaps the landmark post-Brown decision in this area of contention, at least in the public university context, the Supreme Court endorsed the principle of affirmative action in University of California v. …

Notwithstanding the establishment of a notable road safety strategy, the implementation of other traffic-related policies in the Philippines remains a problematic issue. In response to the increasing incidence of traffic-related problems, a select number of local government units – most were city governments – implemented the No-Contact Apprehension Policy in major thoroughfares and crossings of the National Capital Region. The implementation of the No-Contact Apprehension Policy initially went well until it was questioned by a lawyer and several transportation groups before the Supreme Court. The basic contention of the petition that was filed before the Supreme Court was that the No-Contact Apprehension Policy violated the rights of those who were caught and penalized. To date, the Supreme Court has yet to decide on the fate of the No-Contact Apprehension Policy, as the general public patiently awaits its landmark decision. This policy paper aims to examine the No-Contact Apprehension Policy through the important observations made by various stakeholders during its implementation stage. Similarly, this paper aimed to analyze which among the identified alternatives gave the government institutions concerned the most feasible solution to break or overcome their current impasse. Based on the analysis and comparison of the three alternatives, the modified version of the policy appears to be the most feasible among them.

Although neither is a constitutional court, both the U.S. Supreme Court and the European Court of Justice engage in extensive constitutional review. While the European Union does not have a constitution, the European Court often engages in what amounts functionally to constitutional review, particularly in relation to the EU’s quasi-federal structure. This article, comparing the two courts as constitutional adjudicators, explores the differences in style and rhetoric between the two, locating each in their respective institutional and cultural settings. It compares their approaches to interpretation as well as the source and scope of their legitimacy. Both courts have engaged in the constitutionalization of politics and seem at risk of politicizing their constitutions. The threats to their respective powers and legitimacy are, however, different. The U.S. Supreme Court is vulnerable to internal forces—the President, Congress, and national public opinion—whereas the European Court is mainly vulnerable to external forces—the member states and, particularly, the latter’s constitutional courts.