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America's Newest Boogeyman For Deviant Teen Behavior: Violent Video Games And The First Amendment, Joseph C. Alfe, Grant D. Talabay Jun 2020

America's Newest Boogeyman For Deviant Teen Behavior: Violent Video Games And The First Amendment, Joseph C. Alfe, Grant D. Talabay

Pace Intellectual Property, Sports & Entertainment Law Forum

Are violent video games harming America’s youth? Is it possible a series of interconnected circuit boards can influence children (or even adults) to become, themselves, violent? If so, how should our society-- and government-- respond?

To properly answer this last query, violent video games must be viewed through the lens of the First Amendment. Simply put: do games depicting grotesque acts of depravity so profound as to negatively influence the psyche warrant the full constitutional protections ordinarily guaranteed under the mantle of free speech and expression? Are these guarantees without limit? If not, how far may the government go ...


Recidivist Sentencing And The Sixth Amendment, Benjamin E. Adams Jun 2020

Recidivist Sentencing And The Sixth Amendment, Benjamin E. Adams

Indiana Journal of Law and Social Equality

No abstract provided.


Failing To Keep The Cat In The Bag: A Decennial Assessment Of Federal Rule Of Evidence 502'S Impact On Forfeiture Of Legal Privilege Under Customary Waiver Doctrine, Jared S. Sunshine Jun 2020

Failing To Keep The Cat In The Bag: A Decennial Assessment Of Federal Rule Of Evidence 502'S Impact On Forfeiture Of Legal Privilege Under Customary Waiver Doctrine, Jared S. Sunshine

Cleveland State Law Review

Federal Rule of Evidence 502—providing certain exemptions from the surrender of attorney-client and work product privilege because a confidential item was disclosed—had great expectations to live up to after its enactment in 2008, as Congress and others heralded it as a panacea to litigation’s woes in the face of bourgeoning discovery. The enacted rule was the subject of much skepticism by the academic punditocracy, however. Ten years later, this Article surveys the actual results and finds that, regrettably, pessimism has proven the better prediction. Percolation of debate over the rule’s many ambiguities and courts’ disparate approaches ...


Private Affairs: Public Employees And The Right To Sexual Privacy, Susan A. Jacobsen Jun 2020

Private Affairs: Public Employees And The Right To Sexual Privacy, Susan A. Jacobsen

Cleveland State Law Review

Currently, the federal circuit courts split on whether public employers can discipline their employees for legal, off-duty sexual activity. The Fifth and Tenth Circuits permit discipline in these scenarios; the Ninth Circuit does not. At issue is whether certain public employees, like police officers, should be held to a higher standard because of their duty to the public or whether the Constitution entitles them to privacy rights that shield them from discipline. This Note concludes the latter and argues against punishing the legal, off-duty sexual conduct of all public employees. Because the right to sexual privacy already exists within the ...


Federal Protection For "Fur-Babies": A Legislative Proposal, Rebecca Ferrari Jun 2020

Federal Protection For "Fur-Babies": A Legislative Proposal, Rebecca Ferrari

Pepperdine Law Review

Americans love their animals, but America doesn’t protect them. Across the country, animals continue to be classified as mere property, undeserving of any basic rights and unprotected by the animal welfare statutes that do exist, but often remain unenforced. This Article proposes a comprehensive animal protection system that includes the following components: (a) general prohibitions against animal crushing, cruelty, neglect, and abuse; (b) a civil action provision that will allow humane society officers to investigate violations of those prohibitions; (c) a provision establishing animal legal advocates to work alongside the officers and prosecute violations; and (d) an animal-suit provision ...


Men's Reproductive Rights: A Legal History, Mary Ziegler Jun 2020

Men's Reproductive Rights: A Legal History, Mary Ziegler

Pepperdine Law Review

This Article offers the first legal history of men’s procreative rights, filling a gap in scholarship on assisted reproduction, constitutional law, and social movements. A rich literature addresses women’s procreative rights in contexts from abortion to infertility. By comparison, we know relatively little about the history of the debate about reproductive rights for men. This void is particularly troubling at a time when the law of reproductive rights is increasingly up for grabs, especially in the context of assisted reproduction technologies (ART). Men’s rights advocates—and the abortion-rights supporters responding to them—championed a jurisprudential approach to ...


Disappearing Act: Are Free Speech Rights Decreasing?, Michael Conklin Jun 2020

Disappearing Act: Are Free Speech Rights Decreasing?, Michael Conklin

St. Mary's Law Journal

Abstract forthcoming.


Ktunaxa Nation V. British Columbia: A Historical And Critical Analysis Of Canadian Aboriginal Law, Jennifer Mendoza Jun 2020

Ktunaxa Nation V. British Columbia: A Historical And Critical Analysis Of Canadian Aboriginal Law, Jennifer Mendoza

Washington International Law Journal

Aboriginal law is a developing and emerging area of the law in Canada. In fact, Aboriginal rights were not constitutionally protected until the ratification of the Canadian Constitution in 1982. What followed was a series of precedent-setting cases that clarified what “rights” meant under Section 35 of the Constitution, how Aboriginal title and rights could be established, and what duty the federal government had to the First Nations when trying to infringe on those rights. In 2017, the Canadian Supreme Court heard Ktunaxa Nation v. British Columbia, which was the first case to interpret Aboriginal rights under Section 2(a ...


Assault On The Constitution: Why The Southern District Of California Got It Right, Robert F. Brawner Ii Jun 2020

Assault On The Constitution: Why The Southern District Of California Got It Right, Robert F. Brawner Ii

Georgia State University Law Review

This Note will examine and analyze the tests applied by federal courts that have heard similar cases, culminating with the recent decision in the Southern District of California, Duncan v. Becerra. In Part I, this Note provides the context surrounding the current bill being considered by Congress and examines Supreme Court and federal circuit court cases addressing this issue. Part II provides analysis of application of the tests applied by the federal courts. Part III argues that the Supreme Court should adopt Judge Benitez’s reasoning laid out in Duncan and apply his test to any Second Amendment challenge to ...


The Thirteenth Amendment And Human Trafficking: Lessons & Limitations, Kathleen Kim Jun 2020

The Thirteenth Amendment And Human Trafficking: Lessons & Limitations, Kathleen Kim

Georgia State University Law Review

Part I of this Article contextualizes human trafficking within the doctrinal development of the Thirteenth Amendment and Section Two legislation enacted to address subsequent forms of unfree labor. This part describes the origins of a race-conscious Thirteenth Amendment framework and explains its relevance in guiding antitrafficking policy. The overwhelming focus of antitrafficking efforts on sexual exploitation strains the normative foundation of the Thirteenth Amendment. Part II examines the TVPA and the California Trafficking Victims Protection Act and identifies their most significant contributions to Thirteenth Amendment doctrine. Yet, this part finds that the absence of a Thirteenth Amendment framework to guide ...


Beat The Heat: Texas’S Need To Reduce Summer Temperatures In Offender Housing, Mary E. Adair Jun 2020

Beat The Heat: Texas’S Need To Reduce Summer Temperatures In Offender Housing, Mary E. Adair

St. Mary's Law Journal

The Texas Department of Criminal Justice’s lack of air conditioning in offender housing areas is a violation of the Eighth Amendment and deprives offenders of humane living conditions. Unlike most Texans, offenders housed in the TDCJ are unable to adequately protect themselves from the higher, prolonged summer temperatures. Most Texas prisons do not provide air conditioning or other types of cooling systems in offender housing areas, so offenders are at the mercy of the elements with little protection against heat-related illnesses. Several jurisdictions, other than Texas, have recognized extreme temperatures in housing areas can lead to constitutional violations because ...


Pub. L. No. 86-272 And The Anti-Commandeering Doctrine: Is This Anachronism Constitutionally Vulnerable After Murphy V. Ncaa?, Matthew A. Melone Jun 2020

Pub. L. No. 86-272 And The Anti-Commandeering Doctrine: Is This Anachronism Constitutionally Vulnerable After Murphy V. Ncaa?, Matthew A. Melone

Michigan Business & Entrepreneurial Law Review

State taxing authority suffers from little of the structural impediments that the Constitution imposes on the federal government’s taxing power but the states’ power to tax is subject to the restrictions imposed on the exercise of any state action by the Constitution. The most significant obstacles to the states’ assertion of their taxing authority have been the Due Process Clause and the Commerce Clause. The Due Process Clause concerns itself with fairness while the Commerce Clause concerns itself with a functioning national economy. Although the two restrictions have different objectives, for quite some time both restrictions shared one attribute ...


The Guinea-Bissau Constitutional Reform Debate, Watson Aila Gomes Jun 2020

The Guinea-Bissau Constitutional Reform Debate, Watson Aila Gomes

All Dissertations, Theses, and Capstone Projects

The enactment of law is not to be confused with the rule of law, and simply having a constitution does not guarantee political order. In Guinea-Bissau there have been calls to write a new constitution, but whether that helps Guinea-Bissau become a more stable country is questionable. Currently, there is a gap in the research of social science, history and political science examining how the processes of instability have unfolded in Guinea-Bissau. Few studies attempt to examine the correlation between a country’s stability and its constitution. A paradoxical situation exists in many countries in Africa where the political system ...


Ascriptive Nationalism, Demagoguery, And The Modern Presidency: A Case Study In Constitutional Decay, Christopher J. Putney Jun 2020

Ascriptive Nationalism, Demagoguery, And The Modern Presidency: A Case Study In Constitutional Decay, Christopher J. Putney

All Dissertations, Theses, and Capstone Projects

This study is an account of the modern presidency as a source––and under Donald Trump, an accelerant––of systemic problems in American politics. Against the prevailing scholarly view of the Trump presidency as an unqualified aberration, I argue that the signal features of his efforts at governance are actually the product of converging patterns of political and institutional order. Building on seminal (but previously disjointed) work on ascriptive Americanism and the rhetorical presidency, I show that Trump represents the political synthesis of America’s ascriptive tradition and a form of presidential leadership inaugurated more than a century ago by ...


Examining Death Penalty Ballot Measures: A Review Of Austin Sarat’S The Death Penalty On The Ballot, Michael Conklin Jun 2020

Examining Death Penalty Ballot Measures: A Review Of Austin Sarat’S The Death Penalty On The Ballot, Michael Conklin

Seattle Journal for Social Justice

No abstract provided.


State V. Bassett: Washington Courts Can No Longer Sentence Juveniles To Die In Prison, Carolyn Mount Jun 2020

State V. Bassett: Washington Courts Can No Longer Sentence Juveniles To Die In Prison, Carolyn Mount

Seattle Journal for Social Justice

No abstract provided.


Artificial Entities With Natural Rights: Pursuing Profits At The Expense Of Human Capital, Loren M. Findlay May 2020

Artificial Entities With Natural Rights: Pursuing Profits At The Expense Of Human Capital, Loren M. Findlay

Washington and Lee Journal of Civil Rights and Social Justice

This Note explores the legal and constitutional rights granted to corporations and highlights how these corporate benefits are often at the expense of individuals. Over the past century, the corporation has evolved, taking on human-like characteristics. While many statutes and the Constitution use the word “person,” courts have inconsistently interpreted the definition of “person” in determining when it expands to corporations. In courts’ ad hoc analysis and interpretation, individuals get the metaphorical short-end of the stick.

The First Amendment of the Constitution was interpreted by the U.S. Supreme Court to afford the right of free speech to corporations in ...


Privacy's Constitutional Moment And The Limits Of Data Protection, Woodrow Hartzog, Neil Richards May 2020

Privacy's Constitutional Moment And The Limits Of Data Protection, Woodrow Hartzog, Neil Richards

Boston College Law Review

America’s privacy bill has come due. Since the dawn of the internet, Congress has repeatedly failed to build a robust identity for American privacy law. But now both California and the European Union have forced Congress’s hand by passing the California Consumer Privacy Act (CCPA) and the General Data Protection Regulation (GDPR). These data protection frameworks, structured around principles for fair information processing called the “FIPs,” have industry and privacy advocates alike clamoring for a “U.S. GDPR.” States seem poised to blanket the country with FIPs-based laws if Congress fails to act. The United States is thus ...


The Indiscretion Of Friends: Fourth Amendment Concerns About The Ability To Predict A Person’S Online Social Activity By Monitoring Her Contacts, George M. Dery Iii May 2020

The Indiscretion Of Friends: Fourth Amendment Concerns About The Ability To Predict A Person’S Online Social Activity By Monitoring Her Contacts, George M. Dery Iii

Minnesota Journal of Law, Science & Technology

No abstract provided.


Youth Suffrage: In Support Of The Second Wave, Mae C. Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens May 2020

Youth Suffrage: In Support Of The Second Wave, Mae C. Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens

Akron Law Review

The 19th Amendment is talked about as central to our nation’s suffrage story, with many situating women's suffrage work within feminist theory "wave" discourse. However, with this telling, scholars and others too frequently overlook young voters and efforts relating to their election law rights. This article seeks to remedy this oversight and complicate the voting rights canon, in addition to supporting efforts of today’s youth voting rights advocates. It does so by turning our attention to youth suffrage movements, which we argue also can be examined by way of a framework of "waves." The first to offer ...


Felony Disenfranchisement And The Nineteenth Amendment, Michael Gentithes May 2020

Felony Disenfranchisement And The Nineteenth Amendment, Michael Gentithes

Akron Law Review

The Nineteenth Amendment and the history of the women’s suffrage movement can offer a compelling argument against felony disenfranchisement laws. These laws leave approximately six million citizens unable to vote, often for crimes wholly unrelated to the political process. They also increasingly threaten gains in female enfranchisement.

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier. Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails, and that their votes are somehow less worthy ...


The Nineteenth Amendment And The U.S. "Women's Emancipation Policy" In Post-World War Ii Occupied Japan: Going Beyond Suffrage, Cornelia Weiss May 2020

The Nineteenth Amendment And The U.S. "Women's Emancipation Policy" In Post-World War Ii Occupied Japan: Going Beyond Suffrage, Cornelia Weiss

Akron Law Review

This paper explores the influence of the Nineteenth Amendment on U.S. military occupation policy in Post-World War II Japan. A mere 25 years after the ratification of the Nineteenth Amendment, actions taken during the military occupation did not stop at suffrage for Japanese women. Actions included a constitution that provided for women’s “equality” (what, even 100 years after the ratification of the Nineteenth Amendment, is still absent in the U.S. constitution). In addition to addressing women’s suffrage and constitutional equality, this paper examines the successes and failures of the Occupation to eradicate the legal enslavement of ...


The Temperance Movement's Impact On Adoption Of Women's Suffrage, Richard H. Chused May 2020

The Temperance Movement's Impact On Adoption Of Women's Suffrage, Richard H. Chused

Akron Law Review

This paper examines the nature of the Progressive Era and the Prohibition Movement and the important links between the sentiments giving rise to prohibition and those stimulating adoption of suffrage. Though each arose from a somewhat distinct array of reform impulses and overcame varying opposition groups, they were closely related in some ways, supported by overlapping groups of people, advanced by large numbers of women, and, in part, lifted to enactment by similar motivations. Indeed, without the support of many conservative citizens approving both Amendments, it is not clear what the fate of suffrage would have been after World War ...


"A Woman Stumps Her State": Nellie G. Robinson And Women's Right To Hold Public Office In Ohio, Elizabeth D. Katz May 2020

"A Woman Stumps Her State": Nellie G. Robinson And Women's Right To Hold Public Office In Ohio, Elizabeth D. Katz

Akron Law Review

In recognition of the centennial of the Nineteenth Amendment, this essay provides an introduction to a largely overlooked yet essential component of the women’s movement: the pursuit of women’s legal right to hold public office. From the mid-nineteenth century through ratification of the federal suffrage amendment in 1920, women demanded access to appointed and elected positions, ranging from notary public to mayor. Because the legal right to hold office had literal and symbolic connections to the right to vote, suffragists and antisuffragists were deeply invested in the outcome. Courts and legislatures varied in their responses, with those in ...


Suffragist Prisoners And The Importance Of Protecting Prisoner Protests, Nicole B. Godfrey May 2020

Suffragist Prisoners And The Importance Of Protecting Prisoner Protests, Nicole B. Godfrey

Akron Law Review

This paper examines the role that public exposure to the conditions experienced by suffragist prisoners played in the passage of the Nineteenth Amendment. Using the experience of the suffragists as an example of how prisoner protest impacted democratic debate, the paper argues that robust protection of prisoners’ First Amendment rights is fundamental to the nation’s democratic values and political discourse and debate.

The paper begins with an historical overview of the arrests, convictions, and incarceration of the Silent Sentinels, women who began picketing outside the White House in 1917. Over the course of several months, local officials in the ...


Zarda And Sexual Orientation Expression: A New High For Title Vii Interpretation, Nico Ramos May 2020

Zarda And Sexual Orientation Expression: A New High For Title Vii Interpretation, Nico Ramos

Catholic University Law Review

Under current federal law, a majority of jurisdictions decline to extend Title VII protections based on sexual orientation; however, a growing number of circuits have reversed precedent and held that Title VII prohibits discrimination sexual orientation discrimination. The Second Circuit’s en banc decision in Zarda v. Altitude Express reached the conclusion that sexual orientation discrimination is as a cognizable claim under Title VII because in order to discriminate against a person sexual orientation, you naturally first have to take their gender into account. The Supreme Court granted certiorari and has now heard oral arguments.

Part I of this note ...


Test, Trace, And Isolate: Covid-19 And The Canadian Constitution, François Tanguay-Renaud, Lisa M. Austin, Vincent Chiao, Beth Coleman, David Lie, Martha Shaffer, Andrea Slane May 2020

Test, Trace, And Isolate: Covid-19 And The Canadian Constitution, François Tanguay-Renaud, Lisa M. Austin, Vincent Chiao, Beth Coleman, David Lie, Martha Shaffer, Andrea Slane

Articles & Book Chapters

Contact tracing is essential to controlling the spread of infectious disease and plays a central role in plans to safely loosen Covid-19 physical distancing measures and begin to reopen the economy. Contact tracing apps, used in conjunction with established human contact tracing methods, could serve as part of Canada’s “test, trace, and isolate” strategy. In this brief, we consider the potential benefits of using contract tracing apps to identify people who have been exposed to Covid-19, as well as the limitations of using this technology. We also consider the privacy implications of different app design choices. Finally, we consider ...


A Narrowing Field Of View: An Investigation Into The Relationship Between The Principles Of Treaty Interpretation And The Conceptual Framework Of Canadian Federalism, Joshua Ben David Nichols May 2020

A Narrowing Field Of View: An Investigation Into The Relationship Between The Principles Of Treaty Interpretation And The Conceptual Framework Of Canadian Federalism, Joshua Ben David Nichols

Osgoode Hall Law Journal

In its recent decisions in Tsilhqot’in Nation and Grassy Narrows, the Supreme Court of Canada has significantly altered the position of Indigenous peoples within the structure of Canadian federalism. This article sets out to investigate the basis for the Court’s jurisdiction to change this structure. Its approach is historical, as it covers judicial treaty interpretation from St Catherine’s Milling to Grassy Narrows. By contextualizing the most recent change in light of the last 250 years of treaty making, we can see how the notion of Crown sovereignty has become entangled with the Westphalian model of the state ...


Symposium: Pandemics And The Constitution: Federalism And Contagion: Reevaluating The Role Of The Cdc, Kyle J. Connors May 2020

Symposium: Pandemics And The Constitution: Federalism And Contagion: Reevaluating The Role Of The Cdc, Kyle J. Connors

ConLawNOW

The United States Government’s response to the coronavirus outbreak raises difficult questions of federalism. This essay argues for greater federal leadership and involvement to mount the most effective response to a pandemic. As history shows, a response led by local governments is vulnerable to collective action problems and political impediments. An improved response structure in a contagious disease event would include more federal leadership and policy dictated by the Centers for Disease Control (CDC), to be then effectuated by state and local governments. This power can be exercised either formally, through federal grants, or informally through the influence of ...


Symposium: Pandemics And The Constitution: Pandemic Surveillance - The New Predictive Policing, Michael Gentithes, Harold J. Krent May 2020

Symposium: Pandemics And The Constitution: Pandemic Surveillance - The New Predictive Policing, Michael Gentithes, Harold J. Krent

ConLawNOW

As the fight against the coronavirus pandemic continues, state governments are considering more invasive surveillance to determine who has been exposed to the virus and who is most likely to catch the virus in the future. Widespread efforts to test temperatures have been initiated; calls for contact tracing have increased; and plans have been revealed to allow only those testing positive for the virus’s antibodies (who presumably now are immune) to return to work and travel. Such fundamental liberties may now hinge on the mere probabilities that one may catch the disease or be immune from it.

To assess ...