The "law versus politics" debate is central in the study of the Supreme Court's institutional role in US democracy and law making. Research has sought to determine if the Supreme Court is an unconstrained political actor or if it is constrained by precedent. This dissertation contributes to this debate by theorizing that there is not a direct tradeoff; instead, even a politically motivated Court can be constrained by precedent. Given precedent is an internally imposed norm, what incentive does a politically motivated Supreme Court have to adhere to precedent when it results in outcomes that deviate from the Court's most preferred ideological outcome? There has been a lack of theoretical development and empirical testing that would explain the Court's incentive to adhere to precedent. I argue that even a politically motivated Supreme Court has an interest in adhering to precedent as a means of control over the lower courts. The Court has a role as a principal with the Courts of Appeals acting as an agent. The Supreme Court uses precedent as a standard that guides lower court decision-making in thousands of cases that the Court will never hear. The Supreme Court is willing to sacrifice the dispositional outcome (who wins and who loses) in a given case to issue or adhere to a precedent that will better guide lower court decision-making in a given area. To test this theory, this project will construct an original data set using a new measure of precedent. Specifically, "the law" and "precedent" for a case will be coded in terms of the standard of review. The standard of review can be understood as a precise legal statement of which party has the burden of proof or justification in a given case and the nature of that burden. This is an ordinal measure (coded 0-4) based on the Court's finite legal rules in a given area of law (rational basis, heightened rational basis, intermediate, heightened intermediate and strict). This novel understanding better captures the legal content of court opinions.

ABSTRACT STUDENT ACCESS TO HIGHER EDUCATION A HISTORICAL ANALYSIS OF LANDMARK SUPREME COURT CASES MISSOURI EX. REL. GAINES V. CANADA, REGISTRAR OF THE UNIVERSITY OF MISSOURI, 1938, AND GRUTTER V. BOLLINGER, 2003 by Ansley Knox Daniel The purpose of this study is to identify primary themes related to student access to higher education and establishing diversity in higher education classrooms through a comparative analysis of the 1938 Gaines v. Canada case and the 2003 Grutter v. Bollinger case. Both of these Supreme Court opinions have significantly impacted student access to higher education. The landmark ruling in Gaines inaugurated a new and ground-breaking series of legal victories that opened minority student access to higher education and eventually to secondary education. In Grutter, the Supreme Court upheld the use of race as one of many factors that can be used to consider in the student admissions process in higher education to encourage diversity in student populations and in leadership opportunities. Using a methodology of historiography of education law, the intention of this study is to expand the historical and legal implications of the Gaines and Grutter cases, focusing on the application of the Equal Protection Clause of the Fourteenth Amendment and the relationship between the outcomes of the cases and the judicial interpretation employed by the justices. In Grutter, while considering narrow-tailoring and strict scrutiny to check for the legal development and implementation of affirmative action policies, the justices prioritize providing equal access to higher education for all students and ensuring meaningful diversity in university classrooms for an extended, but still limited, time period. It is valuable for historians of the law and members of the legal profession to consider the notion of active liberty articulated by Justice Stephen Breyer (2005) when developing their interpretation of the Equal Protection Clause and how it should be applied.

Since the inclusion of affirmative action programs in numerous places of opportunity in our society there have been objections to these programs. This study will focus on the "colorblind" objection which relies on the belief that our Constitution mandates that all laws must not take race into account. With the analysis of court cases from the past century it is evident that this belief in colorblindness did not exist nor was it claimed to exist in the numerous cases dealing with segregation and racial subordination. It is concluded that this reliance on a principle of colorblindness in opposition of affirmative action is not well-founded, and coming at this juncture in society it does more hurt than help. There is a case analysis from four important cases from the Reconstruction and Jim Crow era which were heard by state and federal courts. A history of the colorblind principle is given and affirmative action cases are also summarized and discussed to give the reader a sense of the current judicial stance on the programs. Literature in favor of a colorblind principle is critiqued and support from other scholars is given.

Although the U.S. Supreme Court reached the correct result in Obergefell v. Hodges, its substantive due process and equal protection analyses were wrong. First, the majority opinion discusses the concept of equal dignity, which has no legal definition nor has it been used in prior Supreme Court jurisprudence. The majority made another mistake in using substantive due process when Obergefell could have been decided on the basis of equal protection alone. Despite these mistakes, there were parts of the opinion the Court did decide correctly. The end result -- that same-sex couples have the right to marry -- was the correct outcome. This is based on the fact that the Supreme Court has defined marriage as a fundamental right and banning marriage to same sex couples would be discrimination on the part of the government. While the majority was also correct in overruling the prior method of defining fundamental rights set forth by Glucksberg, the Court should not have made defining fundamental rights so unlimited in scope. Justice Kennedy removed the prior standard for defining fundamental rights without creating a new standard for judges to follow in the future, leaving the future of substantive due process cases uncertain. This neglect to implement a new standard to replace Glucksberg’s standard leaves substantive due process open to judicial interpretation. The Court also came close, but still neglected, to create a quasi-suspect class on the basis of sexual orientation. The Court should have created standards that were not so overly broad for future decisions regarding substantive due process, and it should have classified sexual orientation as a quasi-suspect class

This thesis will examine the Combating Violence, Disorder and Looting and Law Enforcement Protection Act of Florida's discriminatory nature, vague provisions, and constitutional violations under the First and Fourteenth Amendments. In carrying out this examination, this thesis will analyze case law, law reviews, bill analysis as provided by the Florida legislature, and similar legislation that has been proposed both by other states as well as on the federal level.

The primary questions addressed in this dissertation are whether race-based admissions policies in charter schools are constitutionally permissible, and if not, how could an admissions policy be designed so that it would promote school diversity without violating the law? These questions are important because there are significant numbers of philosophers and scholars who hypothesize that student body diversity not only enhances educational outcomes but also is a necessary component of civic education in a liberal democracy. The researcher takes no particular stance on the benefits of educational diversity, focusing instead on the constitutional questions raised by the use of race-sensitive policies in the interest of diversity. The primary methodology used throughout is legal research, though the literature review includes references to political philosophers and social scientists as well as primary legal sources. Chapter I outlines the most frequent arguments made in favor of school diversity and suggests that the judicial philosophy expressed by the Supreme Court over the last twenty-five years has moved away from the philosophy expressed in Brown v. Board. In Chapter II, Supreme Court precedent on affirmative action policies is analyzed, focusing mainly on the decision of the divided Court in University of California Board of Regents v. Bakke. Chapter III provides a detailed analysis of how six different Federal Circuit Courts interpreted Bakke, highlighting numerous recurring judicial themes and concerns. In Chapter IV, existing charter school laws are examined state by state. Chapter V suggests several policy options for those interested in promoting a diverse charter school student body.

This thesis entitled The Issue of Race in the Jurisprudence of the Supreme Court of the United States: The Evolving Interpretation of the Equal Protection Clause analyses the jurisprudence of the Supreme Court of the United States concerning Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, in particular the following decisions: Plessy v. Ferguson, Sweatt v. Painter, Brown v. Board of Education, Topeka, Regents of the University of California v. Bakke, Grutter v. Bollinger, Gratz v. Bollinger, Fisher v. University of Texas and Schuette v. Coalition to Defend Affirmative Action. The analysis of the above- mentioned decisions illustrates the evolution of the philosophical background of the Supreme Court. After the Second World War, the natural-law legal philosophy began influencing the Justices and slightly overshadowed the positive-law current that was predominant in the pre- War era, in particular in the 19th century. This new philosophical background of the High Court help to constitutionally entrench the affirmative action policies by Justice Powell's opinion in Bakke and particularly by Grutter. However, the natural-law current has never become as dominant as the positive-law one in the 19th century, and as shown in Grutter's companion case of Gratz...

Same-sex marriage is a subject that has been heavily discussed and argued since the concept of marriage came into existence. Marriage is a relationship that most American citizens are entitled to although it is not yet a fundamental right. As of a very recent court decision, Strawser v. Strange, Civil Action No. 14-0424-CG-C1 finalized on February 9, 2015, Alabama has legalized same-sex marriage; furthermore, thirty-seven states now recognize the legality of same-sex marriage. Marriage, whether it is between a heterosexual or a homosexual couple, should be a fundamental right enjoyed by all. This thesis will explain why same-sex marriage should be a fundamental right. The research presented in this thesis will be scrutinized and thoroughly examined showing the obstacles that same-sex couples face when wanting to legally marry. The United States Constitution, the Due Process Clause, and the Equal Protection Clause will be analyzed and discussed to prove that all fifty states should allow same-sex couples to wed. Citizens view what constitutes a marriage differently depending on their upbringing and residence. This thesis will illustrate why same-sex marriage has been such a widely discussed topic, and it will investigate the influence of religion and the church. Historically, the tradition of marriage has always been between one man and one woman. By examining how the tradition of marriage is changing and using case law decisions, an argument can be formed that marriage should be a fundamental right for all people.

人民有言論、著作、出版、講學自由之權利，係由我國憲法第十一條所明文保障。而依照相關大法官解釋與學說，言論自由之意涵尚可包含廣電自由、通訊傳播自由與新聞自由。由以上的討論可以知道，我國大法官於第十一條言論自由的內涵中，試圖加入給予廣電媒體更多保障的特別性質基本權。本研究在綜合歷來大法官解釋與學者之見解，認為可將其對於廣電媒體的期待整理為一個上位的媒體自由之概念，而使廣電媒體有其獨立發展的空間。但所謂的媒體自由，並不能影響人民基本言論自由、傳播權及公民權之行使。 面對日趨複雜的廣電媒體問題，近年來解除管制已經成為一種世界性的潮流，其主要原因就在於對於言論自由的尊重，以及將其視為一個市場：政府的管制除了可能不當限制言論自由之外，更容易破壞市場的秩序。但學者指出，廣電市場與一般經濟學所認知的市場有性質上的不同，且若任由廣電媒體發展，將使得部份的人民無法享有合理的傳播權利。 為了解決此一爭議，學者有認為政府有憲法上管制廣電媒體的正當性。而如前所述，媒體自由並不能夠影響言論自由與公民權的行使，因此政府有義務落實上述的人民權利。至於落實的方法，便是對商業媒體進行更加嚴格的管制，而有效的保障少數人民。 惟上述市場論、管制論等方式皆有缺陷存在，本研究認為，較好的方式，應是以折衷的方法建立雙元的廣電體系，使商業電台與公廣集團各自擁有相當的組織，並且採取「不對稱的管制方式」。但要成立一個如此龐大的公廣集團，在應然性與憲法上都有必須解決的問題。於應然性上，在數位匯流的今天，公共電視可以藉由網路影音的方式而不受時間、頻道的限制成立公視二台甚至三台，是否有必要成為龐大的集團？若要成立此一龐大的公廣集團，首先遇到的將是應如何組織公廣集團，滿足我們對公共電視的想像？ 其次，建立理想的公廣集團，是否有憲法上之限制？首先遇到的，將是在滿足傳播多樣性下的憲法問題，例如為了落實原住民文化或女性主義，公共電視要求某單位應優先錄取原住民或女性，以增進節目製作的多元化，此種積極平權措施（Affirmative Actions）是否有憲法上的問題？其次，則是擴大公廣集團後，應如何處理過多的商業電台，此將涉及憲法上廣電自由、財產權等問題的實踐。 綜上所述，本文從傳播政策切入，並為其尋得憲法上之基礎，使國家有義務採取合理的雙元廣電體系，而落實人民的言論自由與平等公民權，進而與廣電媒體的媒體自由做適度調和。 / The Article 11 of the Constitution guarantees the people’s freedom of speech, publication, writing and teaching. According to the view point of Grand Justices and scholars, the freedom of speech also contains freedom of opinion via radio or television broadcast media, freedom of communications, and freedom of press. From the above discussionwe can know that Grand Justices try to give the radio and television broadcast media much special nature of the constitutional right in the Article 11 of the Constitution. This study integrates the opinion of the interpretation and the scholars, and consider that the constitutional right of the radio and television broadcast media can be the superordinate concept- freedom of media to make it develop Independently. But the freedom of media can’t impede the people’s basic freedom of speech, communication right and citizenship. Facing the problems of the growing complex media, deregulation becomes the world trend in recent year. The main causes are the respect of freedom of speech, and the theory of marketplace: the regulation of the government may violate freedom of speech, and distort the order of the market. However, people point out that the media market is different from the economics market in the nature. Besides, if we indulgedmedia, some people didn’t have had reasonable communication right. For solving this controversial, The Scholars think that the government can regulate the media with Legitimacy in the Constitution. As mentioned earlier, the freedom of media can’t disturb people’s freedom of speech and citizenship, so the government has the duty to ensure the value. As to ensure that, the government must regulate the commercial media strictly and protect the minority in effect. However, the Market Doctrine or the Regulation Doctrine is not perfect. The better method that this study considers is constructing the dual media system eclectically to make the public as the same strong as the commercial and take the “unsymmetric regulation”. Many problems have existed in ought-to-be and constitution if we wanted to construction the Public Broadcasting System. In ought-to-be, should Public TV be a System in convergence which can be as PTV2, PTV3 by internet? How to construct TBS to satisfy with our imagination? Second, Does the constitution limit the desirable TBS? Like the Diversity in the constitution, for example, is it unconstitutional that TBS make affirmative actions for aborigine or women? Besides, how should we limit the commercial media in freedom of media and property? Above of all, this study find the conclusion that the government has to make reasonable dual media system to protect people’s freedom of speech and equal citizenship from the commercial media.

A regulação contra a discriminação de minorias pelos meios de comunicação de massa está normalmente restrita na maioria dos países (incluindo o Brasil) ao direito penal e a algumas sanções administrativas. Menor atenção é dada ao esfera civil. O a imagem minorias pode reforçar estereótipos, limitados à estigmatização de grupo e, claramente, provocar danos para cada membro dessa minoria. Eu diria que, embora o direito à própria imagem seja reconhecido como um direito pessoal, ele tem tanto aspectos individuais, quanto coletivos. Além disso, defendo que a estigmatização grupal acarretaria danos muito maiores para minorias, e que merece proteção jurídica. No entanto, desenhar os remédios legais capazes de garantir esta proteção não é uma tarefa fácil, e pode exigir uma nova doutrina legal. Na verdade, tal desenho deve reconciliar a reparação por danos individuais e coletivos, contra a exigência de um desempenho específico que exige a restauração da imagem do grupo e, acima disso, lidar com a regulação das concessões de TV e de rádio e com matérias de censura. Defendo o uso de direitos de resposta ou de retificação como uma medida possível para fazer valer os direitos das minorias. Ao forçar os violadores a produzirem e transmitirem as respostas das minorias para retrato injusto, estamos dando a devida voz e compensação para elas. / The legal discipline for prejudicial depict of minorities by mass media vehicles is usually restricted in most countries (including Brazil) to criminal law and some administrative sanctions. Much less attention is paid to civil litigation. The portrayal of those minorities could reinforce stereotypes to the limit of group stigmatization, and clearly give rise to damages to each member of this minority. I would argue that, although the right to ones own image is acknowledged as a personal right, it has both individual and collective aspects. Furthermore, I claim the damages a prejudicial characterization could entail would be far greater for minorities, and deserves legal protection. However, to design the legal remedies able to assure this protection is not an easy task, and may require a new legal doctrine. Indeed, such approach should reconcile individual and collective reparation for damages, tradeoff the payment of such damages against the demand for a specific performance requiring the restoration of the group image and, on top of that, deal with public regulation of TV and Radio concessions and censorship concerns. I personally advocate the use of the rights of reply or correction as one possible measure to enforce minority rights. By forcing violators to produce and broadcast the answers of minorities to unfair portrait, we are giving appropriate voice and compensation to them.