Digital Commons Network^™

Domestic Terrorism Classification In The United States V. Canada And The United Kingdom, Michelle Hayek

Brooklyn Journal of International Law

For the past two decades, discourse on terrorism (both global and domestic) has been commonplace throughout the international sphere. Following the attacks on September 11, 2001, many nations have followed suit in launching counterterrorism operations to identify and prevent attacks by both radical groups and lone actors. While the common narrative has focused on “why” terrorist actors commit heinous acts and “how” to best prevent future incidents from emerging, it is important to analyze the legal nuances between prosecuting domestic versus international terrorists. With the rise on “homegrown” domestic lone actors, nations have had to reevaluate and adapt counterterrorism statutes …

Countermajoritarian Criminal Law, Michael L. Smith

Pace Law Review

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people’s actions. Recent scholarship has criticized not only the scope and impact of these laws but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by …

Book Review Of Common Good Constitutionalism, Wendy E. Parmet

Journal of Legal Education

No abstract provided.

Closing The Door On Permanent Incorrigibility: Juvenile Life Without Parole After Jones V. Mississippi, Juliet Liu

Fordham Law Review

In April 2021, the U.S. Supreme Court decided Jones v. Mississippi, its latest opinion in a line of cases addressing when, if ever, a child should be sentenced to life in prison with no hope of parole or release. Although Jones purported to resolve division among lower courts over the findings that a sentencing court must make about a child defendant’s character and prospects for reform and rehabilitation, the decision will likely lead to further disagreement among courts.

This Note argues that although the Supreme Court’s jurisprudence has protected children from harsh sentences, it has also opened a Pandora’s …

A Call To Abolish Determinate-Plus Sentencing In Washington, Rachel Stenberg

Washington Law Review

For certain incarcerated individuals who commit sex offenses, Washington State’s determinate-plus sentencing structure requires a showing of rehabilitation before release. This highly subjective “releasability” determination occurs after an individual has already served a standard sentence. A review of recent releasability determinations reveals sentences are often extended on arbitrary and inconsistent grounds—especially for individuals who face systemic challenges in prison due to their identity or condition. This Comment shows that the criteria to determine whether individuals are releasable is an incomplete picture of their actual experience in the carceral setting, using the distinct example of incarcerated individuals with mental illness. While …

The Collective Right Endures: Pre-Heller Precedent And Our Understanding Of The Modern Second Amendment, William Reach

William & Mary Bill of Rights Journal

Prior to 2008, legal scholars who examined the Second Amendment fell roughly into two camps: those who believed “the right of the people to . . . bear arms” only covered state militias, and those who believed it extended to individual citizens.

After District of Columbia v. Heller conclusively established that the “Second Amendment conferred an individual right to keep and bear arms," discussion of the collective right to bear arms largely receded from public discussion and most litigation surrounding the Second Amendment shifted to define the outer edges of the individual right. But the pre-Heller showdown between these …

Another Bite At The Apple Or The Same Bite? Characterizing Habeas Petitions On Appeal As Pending Instead Of Fully Adjudicated, Gregory Winder

William & Mary Law Review

[...] One of the Act's [Antiterrorism and Effective Death Penalty Act] most significant aspects is its restriction on the filing of successive habeas corpus petitions. Responding to this restriction, prisoners have attempted to circumvent the AEDPA through a number of different procedural routes with varying degrees of success.

This Note examines the circuit split that has emerged for one of those procedural attempts—motions to amend habeas petitions following adjudication on the merits and while on appeal in a circuit court. This Note argues that allowing amendment of habeas petitions on appeal is both consistent with the history of habeas corpus …

Privacy Please — Direct Observation Drug Testing & Invasion Of Privacy, Elizabeth Black

University of Cincinnati Law Review

No abstract provided.

The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker

Northwestern University Law Review

The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. …

Bringing Congress And Indians Back Into Federal Indian Law: The Restatement Of The Law Of American Indians, Kirsten Matoy Carlson

Washington Law Review

Congress and Native Nations have renegotiated the federal-tribal relationship in the past fifty years. The courts, however, have failed to keep up with Congress and recognize this modern federal-tribal relationship. As a result, scholars, judges, and practitioners often characterize federal Indian law as incoherent and inconsistent. This Article argues that the Restatement of the Law of American Indians retells federal Indian law to close the gap between statutory and decisional law. It realigns federal Indian law with the modern federal-tribal relationship negotiated between Congress and tribal governments. Consistent with almost a half-century of congressional law and policy, the Restatement clarifies …

Climate Change Adaptation As A Problem Of Inequality And Possible Legal Reforms, David A. Dana

Northwestern University Law Review

Climate change will necessitate adaptation in all parts of the United States, but some individuals and localities will be better able to adapt than others. Wealth inequalities among individuals and localities already are translating—and will continue to translate—into inequalities between the rich and poor in their capacity to adapt. Current federal disaster aid programs and policies exacerbate these inequalities by favoring the wealthy, and future government resource management decisions and investments also may broaden the gap between rich and poor in terms of the economic and other costs they will bear from climate change. Some have suggested broadening Takings Clause …

Property Law And Inequality: Lessons From Racially Restrictive Covenants, Carol M. Rose

Northwestern University Law Review

A long-standing justification for the institution of property is that it encourages effort and planning, enabling not only individual wealth creation but, indirectly, wealth creation for an entire society. Equal opportunity is a precondition for this happy outcome, but some have argued that past inequalities of opportunity have distorted wealth distribution in contemporary America. This article explores the possible role of property law in such a distortion, using the historical example of racially restrictive covenants in the first half of the twentieth century. I will argue that the increasing professionalization and standardization of real estate practices in that era included …

Make Pennsylvania Free Again, Margaret Riley

The Compass

The author created this paper for a class assignment testing students’ knowledge of constitutional law. The assignment was to write a legal brief addressing the constitutionality of a statewide mask mandate during the COVID-19 pandemic. COVID-19 is an airborne disease that can be transmitted from person to person up to six feet apart. The hypothetical facts provided for this brief were that a suit was filed in Pennsylvania state court by a group of individuals in opposition to the state’s mask mandate that was enacted to address the COVID-19 pandemic. The goal of this brief is to demonstrate knowledge of …

Sex Offender Legislation Ex Post Facto: The History And Constitutionality Of Michigan's Sex Offenders Registration Act, Alexander W. Furtaw

Journal of Legislation

Is Michigan’s Sex Offenders Registration Act (“MSORA”) constitutional? Until 2016, courts routinely said yes. In 2016, the Sixth Circuit in Does #1–5 v. Snyder held that the statute was an unconstitutional ex post facto law. In 2021, the Michigan Supreme Court echoed the Sixth Circuit’s holding in People v. Betts. In response, the Michigan legislature passed Public Law 295 of 2020 to amend MSORA, and courts treat the amended act as a “new” statute. Critical analysis of the amended statute’s legality is difficult because the state legislature has seemingly ignored constitutional issues with statutory proposals until after the fact, and …

Behind The Screen: The Constitutionality Of Remote Testimony For Survivors Of Domestic Violence, Rachel Harris

UC Law Constitutional Quarterly

“Before my hearing for my order of protection, I knew that he would try to contact me through other people, send me flowers, send presents to the kids, and all of those things will make me feel powerless when I have to go into court and see him face-to-face. I knew after all of that I would tell the judge that I changed my mind and that I am going to give him another chance. But being on the screen, I tell you, gave me a sense of empowerment. When the judge asked me if I wanted an order of …

Slaying The Serpents: Why Alternative Intervention Is Necessary To Protect Those In Mental Health Crisis From The State-Created Danger “Snake Pit”, Kathleen Giunta

Journal of Law and Policy

The Black Lives Matter protests in 2020 and ongoing reports of police brutality around the United States sparked extensive debate over qualified immunity and the legal protections that prevent police accountability. Individuals experiencing mental health crises are especially vulnerable to police violence, since police officers lack the requisite skills and knowledge to provide effective crisis support during mental health emergencies. Although the state-created danger doctrine was created by the courts as an exception to qualified immunity, it is so rarely applied that individuals harmed or even killed by police are left without legal remedy. This Note explores qualified immunity and …

Separated At Baptism: What The Mortara Case Can Teach Us About The Rejection Of Natural Justice By Integralists And Progressives, Francis J. Beckwith

BYU Law Review

No abstract provided.

The Case For A Liberal Communitarian Jurisprudence, Amitai Etzioni

Journal of the National Association of Administrative Law Judiciary

This article seeks to show that courts face difficulties without a principled, constitutional anchoring for the conception of the common good. Courts could divine the common good from the penumbra of the Fourth Amendment in the same way the Supreme Court created a right to privacy. In addition to creating a “common good” constitutional principle, the judicial branch should establish criteria to determine when this principle should take precedence over individual rights expressly preserved in the Constitution.

In Defense Of Self And Home: The Problems With Limiting Second Amendment Rights For Young Adults Based On Their Age, Andrew White

University of Cincinnati Law Review

No abstract provided.

Standing For Democracy: Is Democracy A Procedural Right In Vacuo? A Democratic Perspective On Procedural Violations As A Basis For Article Iii Standing, Helen Hershkoff, Stephen Loffredo

Buffalo Law Review

Many commentators express concern that democracy in the United States is under threat, whether from the pressure of concentrated wealth and structural racism, government secrecy and authoritarian tendencies, an outdated constitutional structure and old-fashioned corruption, or perhaps a combination of them all. Against this background, this Article argues that the Supreme Court’s treatment of procedural rights for determining standing—the key that opens the door to federal court—is an overlooked factor in contributing to democratic erosion. According to the Court, violation of a congressionally conferred procedural right that does not safeguard some separate, non-procedural, concrete interest of plaintiff—a “procedural right in …

The Burden Of Time: Government Negligence In Pandemic Planning As A Catalyst For Reinvigorating The Sixth Amendment Speedy Trial Right, Sara Hildebrand, Ashley Cordero

Villanova Law Review

No abstract provided.

A Rapid And Accurate Pcr Test For Constitutionality Of Covid-19 Vaccine Mandates: The Appropriate Standard Of Review Adopted By Klaassen V. Trustees Of Indiana University, Natalie Anderson

Villanova Law Review

No abstract provided.

How Favored, Exactly? An Analysis Of The Most Favored Nation Theory Of Religious Exemptions From Calvary Chapel To Tandon, Luray Buckner

Notre Dame Law Review

In this Note, I argue that Justice Kavanaugh’s most favored nation test for religious exemptions actually differs from the one employed by the majority of the Court in Tandon. The majority’s formulation of the test is vague and explicitly requires courts to engage in a fact-intensive comparability analysis. Practically, lower courts applying Tandon to religious exemption questions have exploited this comparability step to rule against religious claimants generally, but more specifically to deny them strict scrutiny. Because the Tandon test was formulated to apply to all free exercise claims, the test is necessarily framed in more general terms and …

The First Amendment Weaponized: When Guns Become Public Discourse, Danny Li

William & Mary Bill of Rights Journal

This Article discusses First Amendment challenges asserted against gun control measures—inside and outside our courts. It explains at length why existing doctrinal approaches to resolving these challenges fail, providing an alternative account of why the First Amendment should not be construed liberally to protect the open carry of firearms. As guns in public spaces and protests become commonplace, we can expect not only continual First Amendment challenges to gun control measures, but also the growing prevalence of First Amendment claims asserted in the public by advocates and gun owners to justify open carry—and the forging of new constitutional meanings and …

Heirs Of An Administration: Unlawful Executive Actions, Jerome Perez

Catholic University Law Review

The Supreme Court of the United States in DHS v. Regents on June 18, 2020, decided to stall the Trump administration from rescinding the Deferred Action for Childhood Arrivals (DACA) policy that the Obama administration created contrary to the Administrative Procedures Act (APA)––even though in 2016 the Supreme Court affirmed a preliminary injunction on the Deferred Action for Parents of Americans (DAPA) policy, which mirrors DACA. This blunder offhandedly sacrifices the Supreme Court’s reputation as nonpartisan by enlisting itself as the future arbiter of administrative issues with self-evident resolutions and deciding contrary to those resolutions to endorse a political agenda. …

Protecting A Woman’S Right To Abortion During A Public Health Crisis, San Juanita Gonzalez

The Scholar: St. Mary's Law Review on Race and Social Justice

As COVID-19 infected our nation, states were quick to issue executive orders restricting various aspects of daily life under the pretense of public safety. It was clear at the outset that certain civil liberties were going to be tested. Among them, the constitutional right to an abortion.

This comment explores Texas’ response to the COVID-19 pandemic and the limitations it imposed on abortion access. It will attempt to address the legitimacy of the “public health concerns” listed in executive orders issued throughout numerous states and will discuss the pertinent legal framework and judicial scrutiny to apply.

According to the Fifth …

Locked Out: Sora, Sara And The Need For Defense Counsel Advisals And Judicial Plea Colloquies On Sex Offense-Related Housing Consequences, Matthew Cleaver

Journal of Civil Rights and Economic Development

(Excerpt)

On May 20, 2014, Miguel Gonzalez became eligible for conditional release from prison, having served over two years of his two-and-a-half-year sentence for statutory rape. Instead of releasing Gonzalez, the New York Department of Corrections and Community Supervision (DOCCS) confined Gonzalez for an additional seven and a half months after his initial release date and over four months after his maximum sentence. On February 4, 2015, DOCCS finally released Gonzalez from New York’s Woodbourne Correctional Facility. The sole reason for Gonzalez’s additional confinement was his failure to secure housing that complied with the residency restrictions placed on individuals convicted …

The Political And Social Change Driven By Protest: The Need To Reform The Anti-Riot Act And Examine Anti-Riot Provisions, Ronald E. Britt Ii

Fordham Law Review

The right to join in peaceful assembly and petition is critical to an effective democracy and is at the core of the First Amendment. The assault of peaceful protestors in the pursuit of racial justice is not a new phenomenon, and legislators at the federal and state levels have drafted anti-riot provisions as a measure to target protestors they deem an existential threat to American society. As these provisions have become increasingly prevalent in light of the protests following the murders of Breonna Taylor and George Floyd, they have the likelihood of severely chilling the effect on protestors’ right to …

Constitutional Cautions Post-Covid-19: A Proposal For 5th Amendment Protection From Police Power Overreach, Ethan Finster, Jessica Dofelmire, Editor

Brigham Young University Prelaw Review

The invocation of police powers by state governments throughout the Covid-19 pandemic to restrict business activity created a legal protection around government action that prevents 5th Amendment claims. This protection persists whether or not those actions fit within precedential criteria for takings. While police powers are certainly an important aspect of governance in times of crisis, the infringement of individuals’ constitutional rights that accompanied their utilization must be addressed. Moreover, their use during the pandemic set a potentially dangerous precedent for their use in future emergencies. Considering the growing concern surrounding the adequacy of Takings Clause precedent for preventing government …

The Neuroscience Of Qualified Immunity, Gary S. Gildin

Dickinson Law Review (2017-Present)

Qualified immunity not only absolves public officials from accountability for the damages caused when they deprive a citizen of their constitutional rights; by virtue of companion doctrines shielding governmental entities from liability, conferral of immunity leaves the victim to bear the loss. Therefore, it is essential that the contours of immunity be carefully calibrated to align with its intended purposes.

The United States Supreme Court has continuously expanded immunity to protect the exercise of discretion where, albeit acting in violation of constitutional norms, the official could have reasonably believed their conduct was constitutional. This Article exposes the implicit assumptions as …