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Articles 31 - 60 of 172
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The Legacy Of Anthony M. Kennedy, Adam Lamparello
The Legacy Of Anthony M. Kennedy, Adam Lamparello
Adam Lamparello
The defining moments in Justice Kennedy’s tenure on the Court came in Planned Parenthood, Lawrence, and United States v. Windsor, where the Court did to the Constitution—in the name of liberty—what it also did—in the name of democracy—to Florida’s citizens in Bush v. Gore. In all three cases, Justice Kennedy’s reliance on a broad conception of liberty, rather than equal protection principles, shifted the balance too heavily in favor of judicial, rather democratic, creation of unenumerated fundamental rights.
Justice Kennedy will rightly be celebrated for safeguarding reproductive freedom and championing sexual autonomy for same-sex couples, but underneath the black …
The Case For Defamatory Opinion, Adam Lamparello
The Case For Defamatory Opinion, Adam Lamparello
Adam Lamparello
The law should not allow revenge porn in the name of the First Amendment, just as it should not allow private citizens to purchase AK-47’s in the name of the Second Amendment. Citizens can abuse fundamental rights just as governments can infringe them. At some point, courts have to acknowledge that the First Amendment was not intended to give people a fundamental right to trash an individual’s reputation while seeking cover under the self-serving blanket of opinion and taste. It is one thing to stroll into a courthouse with a shirt that says Fuck the Draft, but quite another to …
The Internet Is The New Public Forum: Why Riley V. California Supports Net Neutrality, Adam Lamparello
The Internet Is The New Public Forum: Why Riley V. California Supports Net Neutrality, Adam Lamparello
Adam Lamparello
Technology has ushered civil liberties into the virtual world, and the law must adapt by providing legal protections to individuals who speak, assemble, and associate in that world. The original purposes of the First Amendment, which from time immemorial have protected civil liberties and preserved the free, open, and robust exchange of information, support net neutrality. After all, laws or practices that violate cherished freedoms in the physical world also violate those freedoms in the virtual world. The battle over net neutrality is “is absolutely the First Amendment issue of our time,” just as warrantless searches of cell phones were …
Hall V. Florida: The Death Of Georgia’S Beyond A Reasonable Doubt Standard, Adam Lamparello
Hall V. Florida: The Death Of Georgia’S Beyond A Reasonable Doubt Standard, Adam Lamparello
Adam Lamparello
No abstract provided.
With All Deliberate Speed: Nlrb V. Canning And The Case For Originalism, Adam Lamparello
With All Deliberate Speed: Nlrb V. Canning And The Case For Originalism, Adam Lamparello
Adam Lamparello
No abstract provided.
Is It Time For The Court To Accept The O.F.F.E.R.? Applying Smith V. Organization Of Foster Families For Equality And Reform To Promote Clarity, Consistency, And Federalism In The World Of De Facto Parenthood, Eric A. Degroff, Steven W. Fitschen
Is It Time For The Court To Accept The O.F.F.E.R.? Applying Smith V. Organization Of Foster Families For Equality And Reform To Promote Clarity, Consistency, And Federalism In The World Of De Facto Parenthood, Eric A. Degroff, Steven W. Fitschen
Eric A DeGroff
The question of psychological, or de facto, parents and their rights versus biological or adoptive parents has been percolating through the state and lower federal courts for some years. Given the disparity in approaches and the constitutional issues implicated, it is likely that the Supreme Court will take up this issue, and it may well do so in the near future. When it does, it is imperative that the Court adopt a test that will serve American society and her children and families well. This article proposes such a test.
The argument could be made that, absent a finding …
Riley V. California: Privacy Still Matters, But How Much And In What Contexts?, Adam Lamparello, Charles E. Maclean
Riley V. California: Privacy Still Matters, But How Much And In What Contexts?, Adam Lamparello, Charles E. Maclean
Adam Lamparello
Private information is no longer stored only in homes or other areas traditionally protected from warrantless intrusion. The private lives of many citizens are contained in digital devices no larger than the palm of their hand—and carried in public places. But that does not make the data within a cell phone any less private, just as the dialing of a phone number does not voluntarily waive an individual’s right to keep their call log or location private. Remember that we are not talking exclusively about individuals suspected of committing violent crimes. The Government is recording the calls and locations of …
Questioning The U.S. Supreme Court’S Legalistic Qualified Immunity Approach And Suggestions For A Better Approach, Robert Weems
Questioning The U.S. Supreme Court’S Legalistic Qualified Immunity Approach And Suggestions For A Better Approach, Robert Weems
Robert Weems
No abstract provided.
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
Adam Lamparello
Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
Adam Lamparello
Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …
Justice Sotomayor's Undemocratic Dissent In Schuette V. Coalition To Defend Affirmative Action, Adam Lamparello
Justice Sotomayor's Undemocratic Dissent In Schuette V. Coalition To Defend Affirmative Action, Adam Lamparello
Adam Lamparello
There are compelling reasons to support affirmative action programs. The effects of racial discrimination, and racism itself, remain prevalent throughout the country. Pretending otherwise would be to ignore reality. Arguing that the equal protection clause compels a state to implement race-based affirmative action programs, however, would make a mockery of the Constitution. Former Supreme Court Justice Hughes famously stated, “at the constitutional level where we work, 90 percent of any decision is emotional.” The remaining 10 percent is “[t]he rational part … [that] supplies the reasons for supporting our predilections.” It is time for this type of judging to end. …
Citizens Disunited: Mccutcheon V. Federal Election Commission, Adam Lamparello
Citizens Disunited: Mccutcheon V. Federal Election Commission, Adam Lamparello
Adam Lamparello
We have a separate but unequal Constitution. The wealthy are democracy’s darlings, the middle class are its stepchildren, and the poor are its orphans. And the Constitution’s written and unwritten rights are alive for the wealthy, merely evolving for the middle class, and dead for the poor.
One thing, however, should not be disputed: wealthy individuals are entitled to fully enjoy the Constitution’s textual guarantees. Indeed, the notion that Congress—through aggregate limits on individual contributions—may limit the number of candidates to which they can contribute is troubling. But there is a reason. Everyone else—including the poor and middle class—are entitled …
Discretion Abused: Reinterpreting The Appellate Standard Of Review For Hearsay, Matthew J. Peterson
Discretion Abused: Reinterpreting The Appellate Standard Of Review For Hearsay, Matthew J. Peterson
Matthew J. Peterson
Matthew J. Peterson, Discretion Abused: Reinterpreting the Appellate Standard of Review for Hearsay
Abstract:
The decision by a federal a court to exclude or admit hearsay can be crucial to the case of either party. Despite this prospective impact, the federal courts of appeal currently defer to district courts’ expertise by reviewing a district court’s decision to admit or exclude hearsay for an abuse of discretion. Such deference often insulates district courts’ incorrect interpretation of the rule against hearsay and the improper application of the exclusions and exceptions to the rule from appellate reversal.
Lowering the standard of review for …
The Separate But Unequal Constitution, Adam Lamparello
The Separate But Unequal Constitution, Adam Lamparello
Adam Lamparello
No abstract provided.
The Scarlet Letter: Why Courts’ Reliance On Recidivist Statutes During Sentence Enhancement Hearings May Create Fifth And Eighth Amendment Violations, Jesse S. Weinstein
The Scarlet Letter: Why Courts’ Reliance On Recidivist Statutes During Sentence Enhancement Hearings May Create Fifth And Eighth Amendment Violations, Jesse S. Weinstein
Jesse Weinstein
No abstract provided.
The Ethics Of Effective Advocacy For Children In Abuse And Neglect Proceedings, Suparna Malempati
The Ethics Of Effective Advocacy For Children In Abuse And Neglect Proceedings, Suparna Malempati
Suparna Malempati
This article addresses ethical dilemmas lawyers face when representing children in abuse and neglect proceedings in juvenile court. Children in such cases need traditional advocacy in order to protect their legal rights and effectuate just outcomes. Lawyers who represent children have an ethical obligation to perform this function as advocates for their clients and not merely as guardians ad litem who make paternalistic recommendations about the best interests of children. The requirement that lawyers disregard their role as advocates for the role of guardians ad litem circumvents the ethical rules that govern lawyers and fails to adequately and effectively safeguard …
Rationality, Insanity, And The Insanity Defense: Reflections On The Limits Of Reason, Theodore Y. Blumoff
Rationality, Insanity, And The Insanity Defense: Reflections On The Limits Of Reason, Theodore Y. Blumoff
Theodore Y. Blumoff
Individuals who suffer from chronic paranoid ideations live with deeply embedded conspiratorial delusions that are sometimes accompanied by unwanted visual and/or auditory stimuli, sometime neither: just psychotic delusions in which they feel as if they have lost control of their lives – and of course they have, albeit not from the performances of foreign forces. When those perceived forces persevere for even a fairly short period of time, they can dictate the performance of evil deeds that the individual ultimately feels helpless to oppose. What observations and findings from neuroscience make clear is that such individuals do not lack knowledge, …
Back To The Future: The Constitution Requires Reasonableness And Particularity—Introducing The “Seize But Don’T Search” Doctrine, Adam Lamparello, Charles E. Maclean
Back To The Future: The Constitution Requires Reasonableness And Particularity—Introducing The “Seize But Don’T Search” Doctrine, Adam Lamparello, Charles E. Maclean
Adam Lamparello
Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness.
When do present-day circumstances—the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years …
Behavioral International Law, Tomer Broude
Behavioral International Law, Tomer Broude
Tomer Broude
Economic analysis and rational choice have in the last decade made significant inroads into the study of international law and institutions, relying upon standard assumptions of perfect rationality of states and decision-makers. This approach is inadequate, both empirically and in its tendency towards outdated formulations of political theory. This article presents an alternative behavioral approach that provides new hypotheses addressing problems in international law while introducing empirically grounded concepts of real, observed rationality. First, I address methodological objections to behavioral analysis of international law: the focus of behavioral research on the individual; the empirical foundations of behavioral economics; and behavioral …
The Eu’S Accession To The European Convention On Human Rights: An International Law Perspective, Jed Odermatt
The Eu’S Accession To The European Convention On Human Rights: An International Law Perspective, Jed Odermatt
Jed Odermatt
Article 6(2) of the Treaty on European Union establishes that the Union “shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” In early 2013, negotiators of the 47 Council of Europe member states and the European Union finalised a draft Accession Agreement that would allow the EU to accede to Convention. Taking this draft Accession Agreement as a starting point, this paper examines the issues and challenges that EU accession poses from an international law perspective. Much of the literature on the EU accession has focused on the effect that this process will have …
Paroline, Restitution, And Transferred Scienter: Child Pornography Possessors And Restitution Based On A Commerce-Clause Derived, Aggregate Proximate Cause Theory., Adam Lamparello, Charles Maclean
Paroline, Restitution, And Transferred Scienter: Child Pornography Possessors And Restitution Based On A Commerce-Clause Derived, Aggregate Proximate Cause Theory., Adam Lamparello, Charles Maclean
Adam Lamparello
This Article responds to the Fifth Circuit’s decision in In re Amy Unknown, which is before the United States Supreme Court on granted writ of certiorari. This Article poses a more logical and legal construct, derived from Commerce Clause analysis, that although each individual possessor of child pornography appears to contribute almost imperceptibly to the original victim’s harm, instead, on an aggregate proximate cause theory, the original victim would not have been victimized at all had there been no aggregate market of willing possessors for the material. Victims of child pornography, under the federal statute, and via aggregate proximate cause, …
Equilibrium, Adam Lamparello
Legal Writing As Good Writing; Tips From The Trenches, Michael A. Zuckerman, Andrey Spektor
Legal Writing As Good Writing; Tips From The Trenches, Michael A. Zuckerman, Andrey Spektor
Michael A. Zuckerman
No abstract provided.
Mediating Theft, Kaitlyn E. Tucker
Mediating Theft, Kaitlyn E. Tucker
Kaitlyn E Tucker
In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …
Mediating Theft, Kaitlyn E. Tucker
Mediating Theft, Kaitlyn E. Tucker
Kaitlyn E Tucker
In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …
Mediating Theftv, Kaitlyn E. Tucker
Mediating Theftv, Kaitlyn E. Tucker
Kaitlyn E Tucker
In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …
Improving Parity In Personal Jurisdiction And Judgment Enforcement In International Cases: A Domestic Proposal To Help Revive The Hague Judgments Convention, Eric Porterfield
Improving Parity In Personal Jurisdiction And Judgment Enforcement In International Cases: A Domestic Proposal To Help Revive The Hague Judgments Convention, Eric Porterfield
Eric Porterfield
Two aspects of American law inadvertently discriminate against American consumers and businesses to the benefit of foreign nationals. Restrictive personal jurisdiction rules often prevent American courts from exercising jurisdiction over foreign nationals on the grounds that they lack sufficient “contact” with the forum. Foreign product manufacturers can use this to their advantage, structuring their business dealings to take advantage of confusing constitutional constraints on personal jurisdiction, reducing, if not eliminating, the risk of potential tort liability in American courts, often leaving American consumers without a remedy and disadvantaging American businesses. American companies, in contrast, cannot avoid American tort law at …
Taming A Dragon: Legislative History In Legal Analysis, Mark Deforrest
Taming A Dragon: Legislative History In Legal Analysis, Mark Deforrest
Mark DeForrest
ARTICLE ABSTRACT
TAMING A DRAGON:
LEGISLATIVE HISTORY IN LEGAL ANALYSIS
Mark DeForrest
The use of legislative history in statutory interpretation and analysis has been an area of intensive inquiry since the 1980’s. The debate has been vigorous and has led to the development of sophisticated arguments by both the advocates of the use of legislative history and textualists critical of its use. While the debate has been ongoing, changes in technology have made it easier than ever to access detailed legislative history for both state and federal statutes. This article discusses the impact of both the debate and the technological …
Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill
Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill
Shlomo C. Pill
This paper considers the viability of autonomous-text constitutionalism, a constitutional interpretive and adjudicative theory based on Hans Georg-Gadamer’s philosophical hermeneutics. As the paper explains, this theory is premised on the subjectivity of all interpretive activity; it admits the legitimacy of a wide spectrum of reasonable interpretations of the Constitution, each given their unique character by the dialectical merging of experiential horizons between the fixed text and individual interpreter. This theory embraces a plurality of constitutional meanings in theory, limited by the need for unity in national spheres of constitutional practice. Such practical certainty is achieved by our empowering judicial institutions …
The Concept Of Objectivity In The Uk Supreme Court Through A Comparative Looking Glass, Vito Breda
The Concept Of Objectivity In The Uk Supreme Court Through A Comparative Looking Glass, Vito Breda
Vito Breda
This essay reports on the result of hermeneutical research entitled Objectivity in the UK Judicial Discourse. The concept of objectivity generates a plurality of analysis. For instance, in legal theory, MacCormick suggests the possibility of an objective interpretation of cases. Objectivity in the UK Judicial Discourse focuses on the interpretation of the concept by common law judges. In particular, the project sought to map out the cluster of interpretations (and arguments derived therefrom) on the concept of objectivity by the House of Lords and the UK Supreme Court. The result of the study shows that within UK law there …