{"title":"Keeping the Infield Fly Rule in Effect","authors":"H. Wasserman","doi":"10.25148/lawrev.13.5.14","DOIUrl":"https://doi.org/10.25148/lawrev.13.5.14","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114201924","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article, written for a symposium marking the 75th anniversary of West Virginia State Board of Education v. Barnette, offers a close reading of Justice Jackson's opinion for the Court. In doing so, it offers an implicit and explicit tribute to Vincent Blasi, whose teaching and writing have emphasized the value of deep, careful engagement with the language and arguments of a single text, such as a judicial opinion, and who has been an inspiration to me and many other contemporary First Amendment scholars. This close reading explores a gallery of passages from Barnette that have received relatively little scholarly attention, largely because Jackson's arresting "fixed star" passage has monopolized much of the discussion. But other passages in the opinion help reveal additional important points about the case with important broader implications. They suggest something about why Jackson treated this as a speech rather than a religion case and as an individual liberty case rather than an equal treatment case. They have implications for arguments about third-party harms, "government nonendorsement," student speech, and heckler's veto doctrine. And they underscore the importance of Jackson's description of an autonomous "sphere of intellect and spirit" and of the limits of state power in this area. Perhaps much more than has been recognized, Barnette is a paean to the sovereignty of the mind, and in doing so it treats this realm as much or more as a matter of state non-interference than as a subject for measured judicial balancing. Although I focus closely on the text of the opinion itself, I offer some larger assessments of Barnette's condition today. I make two general observations. First, on the one hand, Barnette had an excellent 75th anniversary year, with citations and discussions in major Supreme Court decisions suggesting its stock is high. On the other, I suggest that it is in much poorer health in academic circles. A striking number of scholarly discussions of current issues, such as the wedding vendor cases, omit Barnette altogether. I suggest that these omissions are evidence of a deeper discomfort with Barnette. And for good reason: As this close reading reveals, the words and deeper music of Barnette are in genuine tension with current popular positions on these issues, and suggest that at some point these scholars need to engage directly and seriously with Barnette. Second, I argue that in interesting ways Barnette is a kind of "pre-capitulation" of much that happened in First Amendment law in the 75 years that followed it. This is true not just in the sense that Barnette positively inspired a great deal of First Amendment doctrine, but also in the sense that much of the jurisprudence that followed consisted of efforts to cabin Barnette and its implications and to build safety valves around it.
{"title":"A Close Reading of Barnette, in Honor of Vincent Blasi","authors":"P. Horwitz","doi":"10.25148/LAWREV.13.4.8","DOIUrl":"https://doi.org/10.25148/LAWREV.13.4.8","url":null,"abstract":"This article, written for a symposium marking the 75th anniversary of West Virginia State Board of Education v. Barnette, offers a close reading of Justice Jackson's opinion for the Court. In doing so, it offers an implicit and explicit tribute to Vincent Blasi, whose teaching and writing have emphasized the value of deep, careful engagement with the language and arguments of a single text, such as a judicial opinion, and who has been an inspiration to me and many other contemporary First Amendment scholars. \u0000 \u0000This close reading explores a gallery of passages from Barnette that have received relatively little scholarly attention, largely because Jackson's arresting \"fixed star\" passage has monopolized much of the discussion. But other passages in the opinion help reveal additional important points about the case with important broader implications. They suggest something about why Jackson treated this as a speech rather than a religion case and as an individual liberty case rather than an equal treatment case. They have implications for arguments about third-party harms, \"government nonendorsement,\" student speech, and heckler's veto doctrine. And they underscore the importance of Jackson's description of an autonomous \"sphere of intellect and spirit\" and of the limits of state power in this area. Perhaps much more than has been recognized, Barnette is a paean to the sovereignty of the mind, and in doing so it treats this realm as much or more as a matter of state non-interference than as a subject for measured judicial balancing. \u0000 \u0000Although I focus closely on the text of the opinion itself, I offer some larger assessments of Barnette's condition today. I make two general observations. First, on the one hand, Barnette had an excellent 75th anniversary year, with citations and discussions in major Supreme Court decisions suggesting its stock is high. On the other, I suggest that it is in much poorer health in academic circles. A striking number of scholarly discussions of current issues, such as the wedding vendor cases, omit Barnette altogether. I suggest that these omissions are evidence of a deeper discomfort with Barnette. And for good reason: As this close reading reveals, the words and deeper music of Barnette are in genuine tension with current popular positions on these issues, and suggest that at some point these scholars need to engage directly and seriously with Barnette. Second, I argue that in interesting ways Barnette is a kind of \"pre-capitulation\" of much that happened in First Amendment law in the 75 years that followed it. This is true not just in the sense that Barnette positively inspired a great deal of First Amendment doctrine, but also in the sense that much of the jurisprudence that followed consisted of efforts to cabin Barnette and its implications and to build safety valves around it.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"45 6-7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123378578","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Introduction to the Micro-Symposium: Infield Fly Rule Is in Effect","authors":"Adrian Karborani","doi":"10.25148/LAWREV.13.5.4","DOIUrl":"https://doi.org/10.25148/LAWREV.13.5.4","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"92 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116284755","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Teach the Controversy","authors":"R. Neyer","doi":"10.25148/LAWREV.13.5.10","DOIUrl":"https://doi.org/10.25148/LAWREV.13.5.10","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116450359","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Full Transparency: A Case Against The Collection of Internet Information in Trump-Era American Immigration","authors":"Thomas P. Campbell","doi":"10.25148/LAWREV.13.3.9","DOIUrl":"https://doi.org/10.25148/LAWREV.13.3.9","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134120003","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Codification and Progressive Development of International Law: A Legislative History of Article 13(1)(a) of the Charter of the United Nations","authors":"Arnold N. Pronto","doi":"10.25148/LAWREV.13.6.11","DOIUrl":"https://doi.org/10.25148/LAWREV.13.6.11","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131084691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Introduction: Barnette at 75","authors":"H. Wasserman","doi":"10.25148/LAWREV.13.4.4","DOIUrl":"https://doi.org/10.25148/LAWREV.13.4.4","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123958062","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Transgender children who wish to begin hormone suppression therapy are required to obtain their parents’ consent. This Comment argues that children should be able to access such treatments with court authorization in situations where their parents do not consent to the treatment. Gender identity is protected under the fundamental right to liberty because it is part of the person’s autonomy of self. Additionally, the United States Supreme Court’s Fourteenth Amendment jurisprudence indicates that the right to make decisions pertaining to one’s sexuality are within the ambit of the right to privacy. For this reason, children have a right to privacy that includes the ability to decide whether to take hormone suppressants. The State’s interests in restricting this privacy right are not significant so as to render the parental consent requirement valid. Therefore, States must provide children with a judicial bypass procedure whereby they can access hormone suppression treatments without parental consent.
{"title":"Why Transgender Children Should Have the Right to Block their Own Puberty with Court Authorization","authors":"F. Vergani","doi":"10.25148/LAWREV.13.4.16","DOIUrl":"https://doi.org/10.25148/LAWREV.13.4.16","url":null,"abstract":"Transgender children who wish to begin hormone suppression therapy are required to obtain their parents’ consent. This Comment argues that children should be able to access such treatments with court authorization in situations where their parents do not consent to the treatment. Gender identity is protected under the fundamental right to liberty because it is part of the person’s autonomy of self. Additionally, the United States Supreme Court’s Fourteenth Amendment jurisprudence indicates that the right to make decisions pertaining to one’s sexuality are within the ambit of the right to privacy. For this reason, children have a right to privacy that includes the ability to decide whether to take hormone suppressants. The State’s interests in restricting this privacy right are not significant so as to render the parental consent requirement valid. Therefore, States must provide children with a judicial bypass procedure whereby they can access hormone suppression treatments without parental consent.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116525192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Since the 1990s, the International Law Commission has increasingly produced soft law, such as principles and draft conclusions, in addition to hard law like draft treaty articles This essay explores the implications of the International Law Commission’s transition toward a greater emphasis on soft law. Soft law is an effective vehicle for the International Law Commission’s mission of codification and progressive development of international law; the International Law Commission’s involvement increases the clarity and accessibility of international law norms and promotes a dynamic, synergistic relationship between hard law and soft law that contributes to the effective evolution of international law. Likewise, the International Law Commission is well-structured to produce soft law by virtue of its expertise, work processes, and robust engagement with states in the Sixth Committee of the United Nations General Assembly. Furthermore, the International Law Commission’s soft law has in fact been influential on an audience of diverse global legal actors, including the International Court of Justice and other international courts and tribunals, treaty bodies, states, and scholars. In order to build on its existing soft law influence, the International Law Commission should acknowledge its vast global audience and tailor its processes and practices to better reach these communities.
{"title":"The International Law Commission’s Soft Law Influence","authors":"Elena A. Baylis","doi":"10.25148/lawrev.13.6.6","DOIUrl":"https://doi.org/10.25148/lawrev.13.6.6","url":null,"abstract":"Since the 1990s, the International Law Commission has increasingly produced soft law, such as principles and draft conclusions, in addition to hard law like draft treaty articles This essay explores the implications of the International Law Commission’s transition toward a greater emphasis on soft law. Soft law is an effective vehicle for the International Law Commission’s mission of codification and progressive development of international law; the International Law Commission’s involvement increases the clarity and accessibility of international law norms and promotes a dynamic, synergistic relationship between hard law and soft law that contributes to the effective evolution of international law. Likewise, the International Law Commission is well-structured to produce soft law by virtue of its expertise, work processes, and robust engagement with states in the Sixth Committee of the United Nations General Assembly. Furthermore, the International Law Commission’s soft law has in fact been influential on an audience of diverse global legal actors, including the International Court of Justice and other international courts and tribunals, treaty bodies, states, and scholars. In order to build on its existing soft law influence, the International Law Commission should acknowledge its vast global audience and tailor its processes and practices to better reach these communities.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127215362","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"70 Years of the International Law Commission, Its Future Role in the Changing Landscape of International Law and the Small-Developing States Nexus","authors":"Michael Imran Kanu","doi":"10.25148/LAWREV.13.6.8","DOIUrl":"https://doi.org/10.25148/LAWREV.13.6.8","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125676216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：