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Punitive Preemption And The First Amendment, Rachel Proctor May
Punitive Preemption And The First Amendment, Rachel Proctor May
San Diego Law Review
In recent years, state legislators have begun passing a new breed of “punitive” preemption laws–those that impose fines, civil and criminal sanctions, and other sanctions on local governments and their officials as a consequence of passing laws or enacting policies that are inconsistent with state laws. This represents a significant change from traditional preemption, under which a local government could enact laws based on its view of preempting state statutes and applicable state constitutional provisions and, if necessary, defend its interpretation in court. When punitive preemption prevents a local lawmaking process from taking place, the state forecloses a unique form …
The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf
The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf
San Diego International Law Journal
The piece examines the treatment of the Fourth Amendment in immigration courts by surveying its jurisprudential history in those courts and then analyzes the judicial responses thereto. Disparities among circuit court rulings add to the confusion and unpredictability typical of Immigration Court decisions. Finally, the article discusses the difficulties raised by the divergent circuit court opinions and offers suggestions as to how we may resolve these difficulties in accordance with the Constitution's requirement of fair play.
Confronting The Limits Of The First Amendment: A Proactive Approach For Media Defendants Facing Liability Abroad, Michelle A. Wyant
Confronting The Limits Of The First Amendment: A Proactive Approach For Media Defendants Facing Liability Abroad, Michelle A. Wyant
San Diego International Law Journal
This Article confronts the limits this issue imposes on the First Amendment in four parts. Part I described the potential for conflicting defamation laws and forum shopping to undermine the American media's speech protections in the context of the Internet and global publications and outlines the Article's overall method of analysis. Part II first orients these conflicting defamation laws with respect to their development from the common law. It then frames them in terms of the underlying structural and policy differences that have produced their substantive divergence. This frame provides the analytical perspective through which this Article examines the varying …
The Clear And Present Danger Test In Anglo-American And European Law, David G. Barnum
The Clear And Present Danger Test In Anglo-American And European Law, David G. Barnum
San Diego International Law Journal
This Article will examine the role that the danger test has played in the decisions of American courts and, more recently, in the decisions of British courts and the enforcement organs of the European Convention. Part I will briefly trace the immediate Anglo-American constitutional background from which the danger test emerged. It particular, it will examine the way in which the common law offense of seditious libel was defined by British judges and judicial commentators in the late nineteenth century. Part II will focus on the evolution in American law of judicial attempts to articulate both a "content-based" and an …
Hong Kong Right Of Abode: Ng Siu Tung & (And) Others V. Director Of Immigration - Constitutional And Human Rights At The Mercy Of China, Teresa Martin
Hong Kong Right Of Abode: Ng Siu Tung & (And) Others V. Director Of Immigration - Constitutional And Human Rights At The Mercy Of China, Teresa Martin
San Diego International Law Journal
This Comment argues that the Court's refusal to sidestep the Standing Committee's reinterpretation using either the Doctrine of Legitimate Expectation, or the judgments previously rendered clause in the Basic Law, signifies its capitulation to the Standing Committee, and its inability to protect constitutional rights and/or human rights in Hong Kong. This Comment will first give a brief background on the concept of one country, two systems and the drafting of the basic law. Second, it will introduce the Right of Abode cases, and explain the constitutional crisis of 1999. Third, it analyzes Ng Siu Tung & Others v. Director of …