Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- Selected Works (3)
- University of Michigan Law School (3)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (3)
- Northwestern Pritzker School of Law (2)
- University of Colorado Law School (2)
-
- University of Georgia School of Law (2)
- American University Washington College of Law (1)
- Florida State University College of Law (1)
- James Madison University (1)
- Loyola Marymount University and Loyola Law School (1)
- Penn State Law (1)
- Roger Williams University (1)
- University of Maine School of Law (1)
- University of Oklahoma College of Law (1)
- Washington and Lee University School of Law (1)
- Publication
-
- Erwin Chemerinsky (2)
- Nevada Law Journal (2)
- Northwestern University Law Review (2)
- Publications (2)
- American University Law Review (1)
-
- Articles (1)
- Georgia Journal of International & Comparative Law (1)
- Loyola of Los Angeles Law Review (1)
- Maine Law Review (1)
- Michigan Law Review (1)
- Nelson Tebbe (1)
- Nevada Supreme Court Summaries (1)
- Oklahoma Journal of Law and Technology (1)
- Penn State Journal of Law & International Affairs (1)
- Roger Williams University Law Review (1)
- Scholarly Articles (1)
- Scholarly Publications (1)
- Scholarly Works (1)
- University of Michigan Journal of Law Reform (1)
- VA Engage Journal (1)
- Publication Type
Articles 1 - 24 of 24
Full-Text Articles in Entire DC Network
Rationalizing Rational Basis Review, Todd W. Shaw
Rationalizing Rational Basis Review, Todd W. Shaw
Northwestern University Law Review
As a government attorney defending economic legislation from a constitutional challenge under the Fourteenth Amendment—How would you rate your chances of success? Surely excellent. After all, hornbook constitutional law requires only the assembly of a flimsy underlying factual record for economic legislation to pass rational basis review.
But the recent uptick in courts questioning the credibility of legislative records might give pause to your optimism. As a growing body of scholarship has identified, the Supreme Court and federal courts of appeals increasingly invalidate laws under rational basis review despite the presence of an otherwise constitutionally sufficient legislative record. Under this …
Due Process Abroad, Nathan Chapman
Due Process Abroad, Nathan Chapman
Scholarly Works
Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. This month the Supreme Court will hear oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican child across the border. Meanwhile the federal courts are scrambling to evaluate the constitutionality of an Executive Order that, among other things, deprives immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause — the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, and property” — remains obscure. Up to now, …
Due Process Abroad, Nathan S. Chapman
Due Process Abroad, Nathan S. Chapman
Northwestern University Law Review
Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. In February, the Supreme Court heard oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican teenager across the border. At the same time, federal courts across the country scrambled to evaluate the constitutionality of an Executive Order that, among other things, deprived immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause—the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, or property”—remains obscure.
Up to now, scholars …
Comparative Perspectives On Specialized Trials For Terrorism, Sudha Setty
Comparative Perspectives On Specialized Trials For Terrorism, Sudha Setty
Maine Law Review
President Obama has made clear that the United States must grapple with questions of how to detain and try potentially dangerous terrorism suspects in a manner that maximizes national security while adhering to the rule of law. Yet the United States faces a serious quandary in terms of how to prosecute suspects who have been detained at Guantanamo Bay, Cuba, that puts at risk the reputation of the United States justice system and its adherence to rule of law. The question of what trial system to use for suspected terrorists requires an historical interrogation of how and to what effect …
Government Nonendorsement, Nelson Tebbe
Government Nonendorsement, Nelson Tebbe
Nelson Tebbe
What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is no …
Of Principle And Prudence: Analyzing The F.B.I.'S Reluctance To Electronically Record Interrogations, Kristian Bryant Rose
Of Principle And Prudence: Analyzing The F.B.I.'S Reluctance To Electronically Record Interrogations, Kristian Bryant Rose
Oklahoma Journal of Law and Technology
No abstract provided.
Holding Supporters Of Terrorism Accountable: The Exercise Of General Jurisdiction Over The Pa And Plo In A Post-Daimler Framework, Mark D. Christopher
Holding Supporters Of Terrorism Accountable: The Exercise Of General Jurisdiction Over The Pa And Plo In A Post-Daimler Framework, Mark D. Christopher
Georgia Journal of International & Comparative Law
No abstract provided.
Qualified Immunity: 1983 Litigation In The Public Employment Context, Erwin Chemerinsky
Qualified Immunity: 1983 Litigation In The Public Employment Context, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
Procedural Due Process Claims, Erwin Chemerinsky
Procedural Due Process Claims, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
In Re D.T., 133 Nev. Adv. Op. 23 (May 25, 2017), Karson Bright
In Re D.T., 133 Nev. Adv. Op. 23 (May 25, 2017), Karson Bright
Nevada Supreme Court Summaries
The Nevada Supreme Court held that the juvenile court properly certified a juvenile as an adult because the seriousness of his offense and his prior adjudications outweighed the subjective factors in Seven Minors. Additionally, the Court held that a court’s certification of cognitively impaired juveniles for adult proceedings does not offend the Eighth Amendment.
From Grace To Grids: Rethinking Due Process Protections For Parole., Kimberly A. Thomas, Paul D. Reingold
From Grace To Grids: Rethinking Due Process Protections For Parole., Kimberly A. Thomas, Paul D. Reingold
Articles
Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free. The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art—rooted in assessing the individual “character” of the potential parolee. In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark changes …
Adrift At Sea: How The United States Government Is Forgoing The Fourth Amendment In The Prosecution Of Captured Terrorists, Frank Sullivan
Adrift At Sea: How The United States Government Is Forgoing The Fourth Amendment In The Prosecution Of Captured Terrorists, Frank Sullivan
Penn State Journal of Law & International Affairs
No abstract provided.
Justice For Noncitizens: A Case For Reforming The Immigration Legal System, Anna Paden Carson
Justice For Noncitizens: A Case For Reforming The Immigration Legal System, Anna Paden Carson
VA Engage Journal
The immigration legal system exists as a function of the executive branch rather than the judicial branch, and many of the constitutional rights guaranteed in a judicial court do not continue into the immigration legal sphere. Noncitizen defendants in the immigration court system are not guaranteed the same due process rights or right to appointed counsel as United States citizens, which severely limits their chance of a successful outcome. Moreover, while many noncitizens await their trials in these courts, they are often placed in one of the 234 immigration detention facilities across the nation, which further exacerbates the direness of …
Reforming Sec Alj Proceedings, Joanna Howard
Reforming Sec Alj Proceedings, Joanna Howard
University of Michigan Journal of Law Reform
This Note considers the current constitutional challenges to SEC administrative proceedings and suggests process reforms to enhance fairness for respondents. Challenges have developed since the Dodd-Frank Act expanded the SEC’s ability to use administrative proceedings. Arguments that there is a pre-existing flaw in the method of appointing administrative law judges provide the most potential for success. The Tenth Circuit’s December 2016 decision against the SEC in Bandimere has created a split, diverging from the D.C. Circuit’s analysis of that question in Lucia. Resolution by the Supreme Court may be inevitable. Even if the challengers do ultimately succeed, this will …
My Life In Crime: An Intellectual History Of The Juvenile Court, Barry C. Feld
My Life In Crime: An Intellectual History Of The Juvenile Court, Barry C. Feld
Nevada Law Journal
No abstract provided.
Pursuing Gault, David S. Tanenhaus, Eric C. Nystrom
Pursuing Gault, David S. Tanenhaus, Eric C. Nystrom
Nevada Law Journal
No abstract provided.
Criminals, Classrooms, And Kangaroo Courts: Why College Campuses Should Not Adjudicate Sexual Assault Cases, Ashley Sarkozi
Criminals, Classrooms, And Kangaroo Courts: Why College Campuses Should Not Adjudicate Sexual Assault Cases, Ashley Sarkozi
Loyola of Los Angeles Law Review
No abstract provided.
Fair For Whom? Why Debt-Collection Lawsuits In St. Louis Violate The Procedural Due Process Rights Of Low-Income Communities, Aimee Constantineau
Fair For Whom? Why Debt-Collection Lawsuits In St. Louis Violate The Procedural Due Process Rights Of Low-Income Communities, Aimee Constantineau
American University Law Review
No abstract provided.
Government Speech And The War On Terror, Helen Norton
Government Speech And The War On Terror, Helen Norton
Publications
The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.
In this essay, I examine the U.S. government's role as …
Precedent And Preclusion, Alan M. Trammell
Precedent And Preclusion, Alan M. Trammell
Scholarly Articles
Preclusion rules prevent parties from revisiting matters that they have already litigated. A corollary of that principle is that preclusion usually does not apply to nonparties, who have not yet benefited from their own “day in court.” But precedent works the other way around. Binding precedent applies to litigants in a future case, even those who never had an opportunity to participate in the precedent-creating lawsuit. The doctrines once operated in distinct spheres, but today they often govern the same questions and apply under the same circumstances, yet to achieve opposite ends. Why, then, does due process promise someone a …
Apple Of Gold And Picture Of Silver: How Abraham Lincoln Would Analyze The Fourteenth Amendment's Equal Protection Clause, Frank J. Williams, William D. Bader, Andrew Blais
Apple Of Gold And Picture Of Silver: How Abraham Lincoln Would Analyze The Fourteenth Amendment's Equal Protection Clause, Frank J. Williams, William D. Bader, Andrew Blais
Roger Williams University Law Review
No abstract provided.
The Disparate Impact Canon, Michael T. Morley
The Disparate Impact Canon, Michael T. Morley
Scholarly Publications
No abstract provided.
Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs
Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs
Publications
The literature on “agency discretion” has, with a few notable exceptions, largely focused on substantive policy discretion, not procedural discretion. In this essay, we seek to refocus debate on the latter, which we argue is no less worthy of attention. We do so by defining the parameters of what we call Vermont Yankee’s “white space” — the scope of agency discretion to experiment with procedures within the boundaries established by law (and thus beyond the reach of the courts). Our goal is to begin a conversation about the dimensions of this procedural negative space, in which agencies are free …
Proposing A One-Year Time Bar For 8 U.S.C. § 1226(C), Jenna Neumann
Proposing A One-Year Time Bar For 8 U.S.C. § 1226(C), Jenna Neumann
Michigan Law Review
Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) requires federal detention of certain deportable noncitizens when those noncitizens leave criminal custody. This section applies only to noncitizens with a criminal record (“criminal noncitizens”). Under section 1226(c), the Attorney General must detain for the entire course of his or her removal proceedings any noncitizen who has committed a qualifying offense “when the alien is released” from criminal custody. Courts construe this phrase in vastly different ways when determining whether a criminal noncitizen will be detained. The Board of Immigration Appeals (BIA) and the Fourth Circuit read “when …