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Articles 31 - 60 of 354
Full-Text Articles in Entire DC Network
Loving Retroactivity, Charles W. "Rocky" Rhodes
Loving Retroactivity, Charles W. "Rocky" Rhodes
Florida State University Law Review
Pending actions across the nation highlight the ongoing struggle between adjudicative retroactivity and marital equality. The Supreme Court's constitutional decisions overruling prior precedents or applying new legal rules to the parties retroactively govern all pending and future adjudicative proceedings on direct review, even if the underlying operative events occurred under a prior legal framework. But this understanding of the temporal boundaries of legal change is being challenged after the Supreme Court's holding in Obergefell v. Hodges that laws excluding same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples are invalid. The retroactive application of Obergefell …
After Sex, Courtney Megan Cahill
The Substitute And Complement Theories Of Judicial Review, David Landau
The Substitute And Complement Theories Of Judicial Review, David Landau
Scholarly Publications
Constitutional theory has hypothesized two distinct and contradictory ways in which judicial review may interact with external political and social support. One line of scholarship has argued that judicial review and external support are substitutes. Thus, "political safeguard" theorists of American federalism and the separation of powers argue that these constitutional values are enforced through the political branches, making judicial review unnecessary. However, a separate line of work, mostly composed of social scientists examining rights issues, argues that the relationship between courts and outside support is complementary-judges are unlikely to succeed in their projects unless they have sufficient assistance from …
False Massiah: The Sixth Amendment Revolution That Wasn't, Wayne A. Logan
False Massiah: The Sixth Amendment Revolution That Wasn't, Wayne A. Logan
Scholarly Publications
No abstract provided.
Smith V. Obama: A Neoclassical After Action Review, Sam Walenz
Smith V. Obama: A Neoclassical After Action Review, Sam Walenz
Florida State University Law Review
No abstract provided.
Vulnerable Insiders: Constitutional Design, International Law And The Victims Of Armed Conflict In Colombia, David Landau
Vulnerable Insiders: Constitutional Design, International Law And The Victims Of Armed Conflict In Colombia, David Landau
Scholarly Publications
This article, prepared for a conference on “The External Dimensions of Constitutions” held at the University of Cambridge in September 2016, explains how the Colombian Constitutional Court constructed a set of rights for a group of vulnerable insiders—victims of the country’s long-running internal armed conflict. The Court based its jurisprudence on a 1991 constitutional design that turned towards international law as a way of resolving a severe domestic crisis of violence and legitimacy. The Court has drawn heavily on principles of international human rights law and international humanitarian law to develop a set of protections for Colombia’s massive population of …
Big Brother Or Big Pharma: The Lion Fight Over The Surveillance And Promotion Of Pharmaceutical Use In America, Patrick Bailey
Big Brother Or Big Pharma: The Lion Fight Over The Surveillance And Promotion Of Pharmaceutical Use In America, Patrick Bailey
Florida State University Law Review
No abstract provided.
Intermediate Scrutiny For Corporate Political Contributions, Joseph K. Leahy
Intermediate Scrutiny For Corporate Political Contributions, Joseph K. Leahy
Florida State University Law Review
A corporation contributes to a Super PAC that supports a candidate for public office. A shareholder sues, alleging that management breached its duty of loyalty by making the contribution to promote its own political views rather than to serve the corporation’s best interests—i.e., by acting in bad faith. What standard will a Delaware court apply when reviewing management’s decision to cause the corporation to make the contribution?
Myriad scholars have opined that the court will apply the standard of review for ordinary business decisions: the management-friendly business judgment rule. Unfortunately for our shareholder plaintiff, this rule presumes that management acts …
The Criminal Justice Black Box, Samuel R. Wiseman
The Criminal Justice Black Box, Samuel R. Wiseman
Scholarly Publications
"Big data "-- the collection and statistical analysis of numerous digital data points -- has transformed the commercial and policy realms, changing firms' understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct. But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited, and, in contrast to the civil context, …
Datamining The Meaning(S) Of Progress, Jake Linford
Datamining The Meaning(S) Of Progress, Jake Linford
Scholarly Publications
No abstract provided.
Mass Monitoring, Avlana Eisenberg
Mass Monitoring, Avlana Eisenberg
Scholarly Publications
Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry. Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes—a phenomenon which this Article terms “mass monitoring”—is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.
This Article addresses the fundamental question of whether EM is punishment. It finds that the origins and history of EM as a progressive alternative to incarceration—a punitive sanction—support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories. Yet new …
Cybersecurity For Infrastructure: A Critical Analysis, Eldar Haber, Tal Zarsky
Cybersecurity For Infrastructure: A Critical Analysis, Eldar Haber, Tal Zarsky
Florida State University Law Review
Nations and their citizens rely on infrastructures. Their incapacitation or destruction could prevent nations from protecting themselves from threats, cause substantial economic harm, and even result in the loss of life. Therefore, safeguarding these infrastructures is an obvious strategic task for any sovereign state. While the need to protect critical infrastructures (CIs) is far from novel, digitization brings new challenges as well as increased cyber-risks. This need is self-evident; yet, the optimal policy regime is debatable. The United States and other nations have thus far opted for very light regulation, merely encouraging voluntary steps while choosing to intervene only in …
Proponents' Standing To Defend Their Ballot Initiatives: Post-Hollingsworth Work-Arounds?, Nat Stern, John S. Caragozian
Proponents' Standing To Defend Their Ballot Initiatives: Post-Hollingsworth Work-Arounds?, Nat Stern, John S. Caragozian
Scholarly Publications
No abstract provided.
Democratic Erosion And Constitution-Making Moments: The Role Of International Law, David Landau
Democratic Erosion And Constitution-Making Moments: The Role Of International Law, David Landau
Scholarly Publications
No abstract provided.
The Disparate Impact Canon, Michael T. Morley
The Disparate Impact Canon, Michael T. Morley
Scholarly Publications
No abstract provided.
Innocent Until Born: Why Prisons Should Stop Shackling Pregnant Women To Protect The Child, Melanie Kalmanson
Innocent Until Born: Why Prisons Should Stop Shackling Pregnant Women To Protect The Child, Melanie Kalmanson
Florida State University Law Review
The practice of American prisons to shackle and otherwise restrain incarcerated, preg-nant women is problematic for several reasons. Such practices include shackling, chaining, and handcuffing pregnant inmates during their third trimester, transportation to and from medical facilities, labor and delivery, and postpartum recovery. Current discourse on this topic focuses primarily on how these practices invade the woman’s civil liberties, particularly the Eighth Amendment right against cruel and unusual punishment, and international human rights. Recent case law vindicates policy rationales for such practices—safety of others, safety of the woman herself, and securing flight risks.
These discussions overlook and this Note confronts …
Policing Criminal Justice Data, Wayne A. Logan, Andrew Guthrie Ferguson
Policing Criminal Justice Data, Wayne A. Logan, Andrew Guthrie Ferguson
Scholarly Publications
No abstract provided.
Reproduction Reconceived, Courtney Megan Cahill
Reproduction Reconceived, Courtney Megan Cahill
Scholarly Publications
No abstract provided.
Federalizing Retroactivity Rules: The Unrealized Promise Of Danforth V. Minnesota And The Unmet Obligation Of State Courts To Vindicate Federal Constitutional Rights, Ruthanne M. Deutsch
Federalizing Retroactivity Rules: The Unrealized Promise Of Danforth V. Minnesota And The Unmet Obligation Of State Courts To Vindicate Federal Constitutional Rights, Ruthanne M. Deutsch
Florida State University Law Review
No abstract provided.
Separation Of Powers, Executive Authority, And Suspension Of Disbelief, Nat Stern
Separation Of Powers, Executive Authority, And Suspension Of Disbelief, Nat Stern
Scholarly Publications
The growth of federal executive power to a magnitude not foreseen at the Constitution's adoption has been largely enabled by favorable rulings by the Supreme Court. Though not invariably sustaining executive prerogative, the Court has rejected challenges to executive power on a scale sufficient to afford the Executive enormous latitude to carry out and shape federal policy. In assessing whether the Executive has overstepped its bounds in particular cases, scholars and Justices alike frequently debate whether a formalist or functional approach more faithfully implements the Constitution's system of separation of powers. Transcending these two schools of interpretation, however, is a …
The Second Amendment Burden: Arming Courts With A Workable Standard For Reviewing Gun Safety Legislation, Melanie Kalmanson
The Second Amendment Burden: Arming Courts With A Workable Standard For Reviewing Gun Safety Legislation, Melanie Kalmanson
Florida State University Law Review
Two controversial topics; one framework. Jurisprudence surrounding the Second Amendment to the U.S. Constitution lacks a workable standard under which courts are to review gun control legislation. This Note presents an intersectional argument whereby the abortion “undue burden” framework is applied to Second Amendment legislation. Through this approach of applying the abortion framework to gun control legislation, like those recently proposed or discussed, this Note argues that these provisions would likely be constitutional. Though abortion is at the center of this discussion, this Note does not aim to contribute to discourse concerning reproductive rights and accepts prima facie the current-standing …
The Road To The Gettysburg Address, Alfred L. Brophy
The Road To The Gettysburg Address, Alfred L. Brophy
Florida State University Law Review
This Article recovers the forgotten ideas about public constitutionalism in seventy published addresses given at cemetery dedications from Supreme Court Justice Joseph Story’s address at Mount Auburn Cemetery in Cambridge, Massachusetts, in 1831, to the addresses by Edward Everett and Abraham Lincoln at Gettysburg in November 1863. It reveals an important, but forgotten, set of ideas that provided a precedent for Lincoln’s Gettysburg Address. Those addresses, including Lincoln’s, reveal the centrality of constitutional values—as opposed to constitutional text—in framing Americans’ interpretation of the Constitution. Pre-Civil War Americans had a vibrant public discussion of constitutional principles, in addition to constitutional text. …
Fixing Bail, Samuel R. Wiseman
Fixing Bail, Samuel R. Wiseman
Scholarly Publications
A large portion of the jail population consists of criminal defendants whose guilt has yet to be established. A growing number of states have attempted to reduce jail populations in light of budget concerns, and many federal and state statutes already direct judges to detain defendants only if alternative conditions will not protect society or prevent pretrial flight. Despite these legislative directives, judges continue to jail too many defendants pretrial. Indeed, although statutes often direct judges not to impose financial conditions leading to detention, many pretrial detainees are in jail because they could not afford the bond set by a …
The New Elections Clause, Michael T. Morley
The New Elections Clause, Michael T. Morley
Scholarly Publications
No abstract provided.
Privacy Petitions And Institutional Legitimacy, Lauren Henry Scholz
Privacy Petitions And Institutional Legitimacy, Lauren Henry Scholz
Scholarly Publications
This Article argues that a petitions process for privacy concerns arising from new technologies would substantially aid in gauging privacy social norms and legitimating regulation of new technologies. An accessible, transparent petitions process would empower individuals who have privacy concerns by making their proposals for change more visible. Moreover, data accumulated from such a petitions process would provide the requisite information to enable institutions to incorporate social norms into privacy policy development. Hearing and responding to privacy petitions would build trust with the public regarding the role of government and large companies in shaping the modern privacy technical infrastructure. This …
Shareholder Political Primacy, Jay B. Kesten
Shareholder Political Primacy, Jay B. Kesten
Scholarly Publications
Corporate political activity raises an important and diffcult question of corporate law: who decides when the corporation should speak and what it should say? In several cases, the Supreme Court has provided a clear answer: shareholders, acting through the procedures of corporate democracy. While this holding has attracted substantial academic and public criticism, there has been no sustained evaluation (beyond identifying the potential agency costs of corporate political activity) of the possibility that the Supreme Court's appeal to the fraught concept of "corporate democracy," though woefully under-theorized, might be the best allocation of power in the limited context of corporate …
Quick And Dirty: The New Misreading Of The Voting Rights Act, Justin Levitt
Quick And Dirty: The New Misreading Of The Voting Rights Act, Justin Levitt
Florida State University Law Review
The role of race in the apportionment of political power is one of the thorniest problems at the heart of American democracy, and reappears with dogged consistency on the docket of the Supreme Court. Most recently, the Court resolved a case from Alabama involving the Voting Rights Act and the appropriate use of race in redistricting. But though the Court correctly decided the narrow issue before it, the litigation posture of the case hid the fact that Alabama is part of a disturbing pattern. Jurisdictions like Alabama have been applying not the Voting Rights Act, but a ham-handed cartoon of …
A "Checklist Manifesto" For Election Day: How To Prevent Mistakes At The Polls, Joshua A. Douglas
A "Checklist Manifesto" For Election Day: How To Prevent Mistakes At The Polls, Joshua A. Douglas
Florida State University Law Review
Mistakes happen—especially at the polls on Election Day. To fix this complex problem inherent in election administration, this Article proposes the use of simple checklists. Errors occur in every election, yet many of them are avoidable. Poll workers should have easy-to-use tools to help them on Election Day as they handle throngs of voters. Checklists can assist poll workers in pausing during a complex process to avoid errors. This is a simple idea with a big payoff: fewer lost votes, shorter lines at the polls, a reduction in post-election litigation, and smoother election administration. Further, unlike many other suggested election …
The Nineteenth Amendment Enforcement Power (But First, Which One Is The Nineteenth Amendment, Again?), Steve Kolbert
The Nineteenth Amendment Enforcement Power (But First, Which One Is The Nineteenth Amendment, Again?), Steve Kolbert
Florida State University Law Review
No abstract provided.
Revisiting Congresssional Delegation Of Interpretative Primacy As The Foundation For Chevron Defense, Mark Seidenfeld
Revisiting Congresssional Delegation Of Interpretative Primacy As The Foundation For Chevron Defense, Mark Seidenfeld
Scholarly Publications
Although congressional delegation is the rationale used most often to justify the Chevron doctrine, most scholars who have written about this justification have recognized that it is a fiction, albeit, they claim, a useful one. In “Chevron’s Foundation,” I proposed an alternative foundation for the Chevron doctrine—a judicial self-limitation justification for Chevron deference—based on an implicit understanding of Article III that courts should not resolve cases by making policy choices where alternative means for deciding these cases exists. In this essay, I first revisit my original critique of the delegation rationale and explicitly respond to the arguments …