Digital Commons Network^™

City Of Los Angeles V. Patel: The Upcoming Supreme Court Case No One Is Talking About, Adam Lamparello

Adam Lamparello

Focusing solely on whether a hotel owner has a reasonable expectation of privacy in a guest registry is akin to asking whether Verizon Wireless has a reasonable expectation of privacy in its customer lists. The answer to those questions should be yes, but the sixty-four thousand dollar question—and the proverbial elephant in the room—is whether hotel occupants and cell phone users forfeit their privacy rights simply because they check into the Beverly Hills Hotel or call their significant others from a Smart Phone on the Santa Monica Freeway. Put differently, a hotel owner’s expectation of privacy in a guest registry …

City Of Los Angeles V. Patel: The Upcoming Supreme Court Case No One Is Talking About, Adam Lamparello

Adam Lamparello

Focusing solely on whether a hotel owner has a reasonable expectation of privacy in a guest registry is akin to asking whether Verizon Wireless has a reasonable expectation of privacy in its customer lists. The answer to those questions should be yes, but the sixty-four thousand dollar question—and the proverbial elephant in the room—is whether hotel occupants and cell phone users forfeit their privacy rights simply because they check into the Beverly Hills Hotel or call their significant others from a Smart Phone on the Santa Monica Freeway.

Put differently, a hotel owner’s expectation of privacy in a guest registry …

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

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 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

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 …

"God Hates Fags" Isn't The Same As "Fuck The Draft": Introducing The Non-Sexual Obscenity Doctrine, Adam Lamparello

Adam Lamparello

No abstract provided.

Hall V. Florida: The Death Of Georgia's Beyond A Reasonable Doubt Standard, Adam Lamparello

Adam Lamparello

Welcome: We’re Glad Georgia is On Your Mind.

Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled. As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded? The answer is yes, and the Georgia courts do not understand why we are scratching our heads. The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year …

Hall V. Florida: The Death Of Georgia’S Beyond A Reasonable Doubt Standard, Adam Lamparello

Adam Lamparello

No abstract provided.

Experiential Legal Writing: The New Approach To Practicing Like A Lawyer, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Law students engage in various types of “experiential” learning activities while in school, such as clinics and externships, but they graduate without the experience necessary to practice law. This is traceable to a glaring deficiency at most law schools: a writing program that is comprehensive, properly sequenced, and integrated across and throughout the law school curriculum.

First, most graduates have never drafted the documents they will encounter in law practice. Additionally, they have not drafted and re-drafted such documents while also participating in real-world simulations as they would in actual practice. Instead, students graduate having drafted an appellate brief, a …

With All Deliberate Speed: Nlrb V. Canning And The Case For Originalism, Adam Lamparello

Adam Lamparello

Record numbers of Americans are renouncing their citizenship. California’s citizens have amassed enough signatures to place on the 2016 ballot a proposal to divide California into six separate states. At least 34 states recently called for a second constitutional convention. Several states have ignored or enacted laws defying Supreme Court precedent. One has threatened to secede. Former Supreme Court Justice John Paul Stevens has responded to this crisis by calling for the addition of six constitutional amendments, several of which expand federal authority. That, in a nutshell, is the problem. This Article argues that, to remedy the imbalance in power …

With All Deliberate Speed: Nlrb V. Canning And The Case For Originalism, Adam Lamparello

Adam Lamparello

No abstract provided.

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 …

Riley V. California: What It Means For Metadata, Border Searches, And The Future Of Privacy, Adam Lamparello

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 a digital device 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 about individuals suspected of committing violent crimes. The Government is recording the calls and locations of …

A Proposal To The Aba: Integrating Legal Writing And Experiential Learning Into A Required, Six-Semester Curriculum That Trains Students In Core Competencies, 'Soft Skills,' And Real-World Judgment, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Experiential learning is not the answer to the problems facing legal education. Simulations, externships, and clinics are vital aspects of a real-world legal education, but they cannot alone produce competent graduates. The better approach is to create a required, six-semester experiential legal writing curriculum where students draft and re-draft the most common litigation documents and engage in simulations, including client interviews, mediation, depositions, settlement negotiations, and oral arguments in the order that they would in actual practice. In so doing, law schools can provide the time and context within which students can truly learn to think like lawyers, do what …

Brief Of Amici Curiae -- Heien V. State Of North Carolina, Charles E. Maclean, Adam Lamparello

Adam Lamparello

Reasonable suspicion of unlawful activity cannot be predicated on conduct that does not violate the law. Put differently, if reasonableness — or reasonable suspicion — is to mean anything, it means that apparent violations of the law must be based on actual violations of the law. The North Carolina Supreme Court’s decision sends a message to drivers throughout the country that they cannot be wrong about what the law requires, even where law enforcement is wrong — dead wrong — about what the law proscribes.

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

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

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. …

A Proposal To The Aba: One Required Legal Writing Course For All Six Semesters Of Law School, Adam Lamparello

Adam Lamparello

If you decide to run a marathon, but stop training after the eighth week of a sixteen-week training schedule, you will not finish. Why? Your muscles atrophied, and your stamina declined. If you stop writing after the second or third semester of law school, you will not become a good legal writer. Why? Your skills atrophied. You did not develop mental memory—just like the marathon runner did not develop muscle memory.

Why did the marathon runner stop? Maybe life got in the way, or training became too hard. But it’s the difficult moments—the grind—that separates the marathon runner from the …

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 …

Citizens Disunited: Mccutcheon V. Federal Election Commission, Adam Lamparello

Adam Lamparello

No abstract provided.

Citizens Disunited: Mccutcheon V. Federal Election Commission, Adam Lamparello

Adam Lamparello

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. Corporate giants like Goldman Sachs and AT&T line the pockets of senatorial candidates—and purchase influence—while average citizens walk into a polling station, often encounter voter suppression tactics, and cast a largely symbolic vote. Stated simply, we now live in a society of soft inequality. Like the “soft bigotry of low expectations,” soft inequality has created a liberty gap between the …

The Separate But Unequal Constitution, Adam Lamparello

Adam Lamparello

No abstract provided.

Unreasonable Doubt: Warren Hill, Aedpa, And Georgia’S Unconstitutional Burden Of Proof, Adam Lamparello

Adam Lamparello

No abstract provided.

No Shoehorn Required: How A Required, Three- Year, Persuasion-Based Legal Writing Program Easily Fits Within The Broader Law School Curriculum, Adam Lamparello

Adam Lamparello

In this article, we incorporate our proposal into the broader curricular context, and argue for more separation, not more integration, among the analytical, practical, and experiential pillars of legal education. All three are indispensable—and independent—pillars of real-world legal education:[1] (1) the analytical focuses on critical thinking; (2) legal writing combines—and refines—thinking through practical skills training; and (3) experiential learning involves students in the practice of law. To help law students master all three, the curriculum should be designed in a largely sequential (although sometimes concurrent) order, to embrace, not blur, their substantive differences, and to approach inter-foundational collaboration with …

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 …

Legal Writing - What's Next? Real-World, Persuasion Pedagogy From Day One—It’S Not What You Offer; It’S What You Require – Part Ii (In A Three-Part Series), Adam Lamparello, Charles Maclean

Adam Lamparello

This essay (part two of a three-part series) strives to begin a collaborative discussion with legal writing, clinical, and doctrinal faculty about what “change” in legal education should mean. In Part I, the authors rolled out a blueprint for transformative change in legal writing pedagogy, which includes: (1) more required skills courses that mirror the actual practice of law; (2) a three-year program that includes up to four writing credits in every semester; and (3) increased collaboration between legal writing professors and doctrinal faculty. In this essay, we get more specific, and propose a three-year legal writing curriculum that builds …

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, …

Amicus Briefs: Friends Of Lawyering Skills Pedagogy, Adam Lamparello, Charles Maclean

Adam Lamparello

No abstract provided.