Law Commons^™

Guns, Violence, And Schools: Policies To Prevent And Respond To School Shootings, Mark A. Velez

Mark A. Velez

The United States continues to deal with school shootings. The most recent massacre occurred in 2012 at the Sandy Hook Elementary School in Newtown, Connecticut. Several strategies have been used to try and prevent such tragedies from happening. These strategies have included tough gun laws, gun-free school zones, and updating school policies and infrastructure. However, despite these, and other, strategies, school shootings continue to occur. Unfortunately, when a school shooting occurs, school personnel and children are left helpless until the police arrive or the shooter decides to end the rampage. During this time many lives may be lost. Therefore, it …

Terrorism And Associations, Ashutosh A. Bhagwat

Ashutosh Bhagwat

The domestic manifestation of the War on Terror has produced the most difficult and sustained set of controversies regarding the limits on First Amendment protections for political speech and association since the anti-Communist crusades of the Red Scare and McCarthy eras. An examination of the types of domestic terrorism prosecutions that have become common since the September 11 attacks reveals continuing and unresolved conflicts between national security needs and traditional protections for speech and (especially) associational freedoms. Yet the courts have barely begun to acknowledge, much less address, these serious issues. In the Supreme Court’s only sustained engagement with these …

Cipa V. State Secrets: How A Few Mistakes Confused Two Important National Security Privileges, Elisa Poteat

Elisa Poteat

No abstract provided.

Rebalancing The Fourth Amendment, Shima Baradaran

Shima Baradaran

The events of September 11 forever changed the political and legal response to terrorism. After more than ten years, two wars, several targeted military strikes, and significantly increased surveillance, we still have not succeeded in stopping the growth of Al-Qaeda and other terrorist organizations. The war on terror has not just been a military one. To stop terrorism, it is imperative to cut off the flow of terrorism financing. To this end, a number of nations have created financial laws that prohibit the formation of anonymous companies and monitor suspicious bank transfers. These laws have been touted as evidence that …

Guns, Violence, And School Shootings: A Policy Change To Arm Some Teachers And School Personnel, Mark A. Velez

Mark A. Velez

The United States continues to deal with school shootings. The most recent massacre occurred in 2012 at the Sandy Hook Elementary School in Newtown, Connecticut. Several strategies have been used to try and prevent such tragedies from happening. These strategies have included tough gun laws, gun-free school zones, and updating school policies and infrastructure. However, despite these, and other, strategies, school shootings continue to occur. Unfortunately, when a school shooting occurs, school personnel and children are left helpless until the police arrive or the shooter decides to end the rampage. During this time many lives may be lost. Therefore, it …

Knives And The Second Amendment, David B. Kopel, Claytom E. Cramer, Joseph P. Olson

David B Kopel

This Article is the first scholarly analysis of knives and the Second Amendment. Under the Supreme Court’s standard in District of Columbia v. Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.

There is no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives.

Prohibitions on carrying knives in general, or of particular knives, are unconstitutional. For example, bans of knives that open in a convenient way (e.g., …

Mexico's Gun Control Laws: A Model For The United States?, David B. Kopel

David B Kopel

This article explicates Mexico’s constitutional right to arms and Mexico’s main gun-control statute, the Federal Law of Firearms and Explosives (Ley Federal de Armas de Fuego y Explosivos). Along the way, the article notes various proposals to move U.S. gun laws in a Mexican direction.

Part II of this article is an English translation of the Mexican constitution’s guarantee of the right to arms, as well as predecessor versions of the guarantee.

Part III explains the operation of Mexico’s gun-control system and provides some historical and statistical information about gun ownership and gun smuggling in Mexico.

Part IV describes some …

Sex, Drugs, Alcohol, Gambling, And Guns: The Synergistic Constitutional Effects, David B. Kopel, Trevor Burrus

David B Kopel

In this Article, we discuss the synergistic relationship between the wars‖ on drugs, guns, alcohol, sex, and gambling, and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general police power‖ to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex have encroached on the police powers traditionally reserved to the states.

Congress‘s infringement of the States‘ powers over the health, safety, welfare, and …

Criminal Forfeiture Procedure In 2013: An Annual Survey Of Developments In The Case Law, Stefan D. Cassella

Stefan D Cassella

This is another in a series of articles on developments in the federal case law relating to criminal forfeiture procedure. It covers the cases decided in 2012 and early 2013. The article begins with the cases that illustrate the concept that criminal forfeiture is part of the defendant’s sentence in a criminal case. It then takes the reader more or less chronologically through the litigation of a case, beginning with the seizure and restraint of the property and continuing through the trial and sentencing of the defendant and the adjudication of third-party issues in the post-trial ancillary proceeding. Except in …

Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky

Lee Kovarsky

Over the last decade, federal courts have internalized the idea that interpretations of the Antiterrorism and Effective Death Penalty Act (AEDPA) should disfavor habeas relief. This Article explores the strange legislative history surrounding AEDPA's passage and the resulting problems in using 'comity, finality, and federalism' to express this interpretive mood. It demonstrates that such a simplistic reading of habeas reform is deeply misguided. Through the use of public choice and related models, the Article explores the roots of this interpretive problem. It ultimately rejects any attempt to characterize AEDPA by reference to legislative purpose.

Reducing The Drug War's Damage To Government Budgets, David B. Kopel, Trevor Burrus

David B Kopel

This Article examines ways that governments can mitigate the economic damage caused by the drug war. Part I details four specific legal reforms enacted in Colorado, which aim to reduce the problems of over-criminalization: Requiring a fiscal note for the creation of new statutory crimes; reducing drug possession from a felony to a misdemeanor; narrowing the scope of 'three strikes' laws, and; adjusting old sentences in light of new laws.

Part II explores the fiscal benefits of ending prohibition, such as reduced law enforcement costs and substantially increased tax revenues.

Part III analyzes the conflict between congressionally-imposed prohibition, and state …

Enforcing Animal Welfare Statutes: In Many States, It’S Still The Wild West, Elizabeth Rumley, Rusty Rumley

Elizabeth Rumley

Authority to enforce animal welfare laws has been delegated to private citizens involved with humane organizations since the 1880s when the majority of those statutes were originally passed. Currently, over half of the states and the District of Columbia grant some form of law enforcement power to members or officers of humane societies. The authority ranges from the power to arrest to the ability to seize and destroy private property. In some cases it includes the right to carry a firearm-- even, in one state, as a convicted felon-- while engaging in law enforcement activities. After a brief history of …

Juvenile Justice Reform 2.0, Tamar R. Birckhead

Tamar R Birckhead

Before the 1954 decision in Brown v. Board of Education, the United States Supreme Court’s exercise of judicial review did not support the notion that constitutional litigation could be an effective instrument of social reform. The Court’s principled rejection of racially segregated public education, however, gave new legitimacy to the concept of judicial review, transforming it from an obstacle into a principal means of achieving social progress. Since then, federal courts have impacted public policy in many areas – from housing, welfare, and transportation to mental health institutions, prisons, and juvenile courts. Yet, there are inherent structural challenges to effecting …

Those Who Can't, Teach: What The Legal Career Of John Yoo Tells Us About Who Should Be Teaching Law, Lawrence Rosenthal

Lawrence Rosenthal

Perhaps no member of the legal academy in America is more controversial than John Yoo. For his role in producing legal opinions authorizing what is thought by many to be abusive treatment of detainees as part of the Bush Administration’s “Global War on Terror,” some have called for him to be subjected to professional discipline, others have called for his criminal prosecution. This paper raises a different question: whether John Yoo – and his like – ought to be teaching law.

John Yoo provides something of a case study in the problems in legal education today. As a scholar, Professor …

Second Amendment Plumbing After Mcdonald, Lawrence Rosenthal

Lawrence Rosenthal

These essays were written for a debate with Professor Joyce Lee Malcolm appearing in the Northwestern University Law Review concerning the standard of scrutiny to be applied to gun control laws in the wake of the Supreme Court's decision in McDonald v. City of Chicago. The opening essay argues that the text of the Second Amendment, the history of gun-control regulation, and the approach taken by the Supreme Court in McDonald and District of Columbia v. Heller argue for some form of intermediate scrutiny capable of coming to grips with the fact that the populace capable of bearing arms, that …

First Amendment Investigations And The Inescapable Pragmatism Of The Common Law Of Free Speech, Lawrence Rosenthal

Lawrence Rosenthal

Scholars have struggled to explain our sprawling First Amendment doctrine – once described by Justice Stevens as “an elaborate mosaic of specific judicial decisions, characteristic of the common law process of case-by-case adjudication.” The position that has gained the most traction in recent scholarship has stressed the primacy of governmental motive – this school of thought argues that the degree of scrutiny to be afforded a challenged regulation is based on an assessment of the likelihood that the regulation reflects a governmental motive to burden disfavored speech or speakers.

This article offers a challenge to the purposivist account. It begins, …

Treason As A State Crime, Thomas Wilson Dorr, Ex Parte Dorr, Dean A. Cantalupo

Dean A Cantalupo Esq.

2010 version: For Thomas Wilson Dorr, Treason was a State crime. It is understood by most people that Treason within the United States Constitution is a crime against the national authority, the United States, the Union. Notwithstanding that common understanding, Treason within the United States Constitution is also a State crime, and this is made clear by the plain language of the United States Constitution, as well as many cases of Treason against a State that may be found in the American case reporters. The fundamental textual authority within the Constitution that empowers the United States federal government with legitimate …

Violent Crimes And Known Associates: The Residual Clause Of The Armed Career Criminal Act, David C. Holman

David Holman

Confusion reigns in federal courts over whether crimes qualify as “violent felonies” for purposes of the Armed Career Criminal Act (ACCA). The ACCA requires a fifteen-year minimum sentence for felons convicted of possessing a firearm who have three prior convictions for violent felonies. Many offenders receive the ACCA’s mandatory minimum sentence of fifteen years based on judges’ guesses that their prior crimes could be committed in a violent manner—instead of based on the statutory crimes of which they were actually convicted. Offenders who do not deserve a minimum sentence of fifteen years may receive it anyway.

The courts’ application of …

Graham V. Florida: Justice Kennedy's Vision Of Childhood And The Role Of Judges, Tamar R. Birckhead

Tamar R Birckhead

This short essay examines Graham v. Florida, the United States Supreme Court decision holding that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. This essay argues that Justice Anthony Kennedy’s majority opinion is grounded not only in Roper v. Simmons, which invalidated the death penalty for juvenile offenders on Eighth Amendment grounds, and Kennedy v. Louisiana, which held that the Eighth Amendment prohibited the death penalty for the offense of rape of a child, but also in Establishment Clause cases set …

Pragmatism, Originalism, Race And The Case Against Terry V. Ohio, Lawrence Rosenthal

Lawrence Rosenthal

Perhaps no decision of the United States Supreme Court concerning the Fourth Amendment’s prohibition on “unreasonable search and seizure” has come in for more criticism than Terry v. Ohio, in which the Supreme Court concluded that even absent probable cause to arrest, a brief detention and protective search of an individual comports with the Fourth Amendment “where a police officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous . . .” Terry is frequently denounced as granting the …

“Intelligence” Searches And Purpose: A Significant Mismatch Between Constitutional Criminal Procedure And The Law Of Intelligence-Gathering, Robert C. Power

Robert C. Power

No abstract provided.

A Key To The Door: Habeas Corpus And The Release Of Non-Citizen Detainees Into The United States, Joseph Davids

Joseph Davids

This is an unpublished paper about the constitutional issues involved in indefinite detention at Guantanamo, or any other site, analyzed through the lens of the case of Kiyemba v Obama. The paper critiques the decision of the Court of Appeals and tries to highlight the illegality of detention without trial by looking to other areas of the law, namely immigration law, and the consequences this view will have on the continuing struggle against extremism.

Fact Suppression And The Subversion Of Capital Punishment: What Death Penalty Foes On The Supreme Court And In The Media Do Not Want The Public To Know, Lester --- Jackson

LESTER JACKSON

The U.S. Supreme Court and other courts, aided by the media in suppressing critical information about case facts and case law, have all but abolished capital punishment, turning what's left into a costly and agonizing farce. While pretending to superlative morality, dishonesty, especially half-truth, is central to their cause. An egregious example was Roger Coleman, widely but with knowing falsity portrayed as a choir boy executed because heartless judges impatiently refused to hear evidence of his innocence. Going further, in myriad cases, death sentences are reversed or banned when guilt is not even disputed. This is achieved by focusing upon …

The New Originalism Meets The Fourteenth Amendment: Original Public Meaning And The Problem Of Incorporation, Lawrence Rosenthal

Lawrence Rosenthal

This paper, prepared for a symposium on the Bill of Rights and the Fourteenth Amendment at the University of San Diego's Institute for Constitutional Originalism, examines the historical case for incorporation within the Fourteenth Amendment of the rights in first eight amendments to the Constitution in light of the recent turn in thinking about originalist methods of constitutional interpretation. In recent decades, the historical case for incorporation has made something of a comeback, resting on strong evidence that many of the key framers of the Fourteenth Amendment considered the first eight amendments to be among the privileges and immunities of …

The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain

Corinna Lain

Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few …

Probability, Probable Cause, And The Law Of Unintended Consequences, Lawrence Rosenthal

Lawrence Rosenthal

This brief essay responds to Max Minzer's article "Putting Probability Back into Probable Cause." The essay supports Professor Minzer's proposal for the use of empirical evidence of the success of a given investigating officer or investigative technique in assessing the existence of probable cause to search or seize, but offers a caveat. If an officer's "hit rate" becomes central to Fourth Amendment analysis, there is a serious danger of overdeterrence which, in turn, could lead to a dangerous escalation in violent crime. The essay offers some proposals for minimizing the risk of overdeterrence in an empirically-based regime of probable cause.

Equal Sentences For Unequal Participation: Should The Eighth Amendment Allow All Juvenile Murder Accomplices To Receive Life Without Parole?, Brian Gallini

Brian Gallini

The Torture Of Sami Al Arian, C. Peter Erlinder

C. Peter Erlinder

No abstract provided.

Dhimmitude And Disarmament, David B. Kopel

David B Kopel

Under shari'a law, non-Muslims, known as dhimmi, have been forbidden to possess arms, and to defend themselves from attacks by Muslims. The disarmament is one aspect of the pervasive civil inferiority of non-Muslims, a status known as dhimmitude. This Essay examines the historical effects of the shari'a disarmament, based on three books by Bat Ye'or, the world's leading scholar of dhimmitude. As Ye'or details, the disarmament had catastrophic consequences, extending far beyond the direct loss of the dhimmi's ability to defend themselves. The essay concludes by observing how pretend gun-free zones on college campuses turn the adults there into 21st …

Fallibility + Unchecked Power = Trouble, C. Peter Erlinder

C. Peter Erlinder

No abstract provided.