Law Commons^™

Unlocking The Courthouse Door: Removing The Barrier Of The Plra’S Physical Injury Requirement To Permit Meaningful Judicial Oversight Of Abuses In Supermax Prisons And Isolation Units, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

In recent years the number of inmates held in isolation in American prisons has increased dramatically. At the same serious abuses have occurred in these isolation units. These abuses, which include subjecting inmates to degrading, humiliating and unnecessary suffering, often do not cause physical injury. Even though constitutional rights are violated by these acts, federal courts have often failed to provide relief to victims of these abuses. The reason is that the Prison Litigation Reform Act (PLRA) deprives federal courts of the ability to provide relief from degrading and even torturous behavior if there is not physical injury. This article …

The Constitutionality Of Citizen Suit Provisions In Federal Environmental Statutes, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

The Supreme Court’s decisions under the pollution control statutes administered by the Environmental Protection Agency (EPA) reach startlingly anti-environmental results, but they are explained more by the Court’s overwhelming hostility toward the private enforcement of statutes, rather than an anti-environmental bias. Adding insult to injury, in one of the rare victories for private environmental plaintiffs in those decisions, Justice Kennedy queried whether citizen suits intrude on the President’s Article II executive power and violate the separation of power principles. While other Justices have raised the same concern, Justice Kennedy’s invitation is particularly significant because he is a swing vote in …

Privacy And The Right Of Free Expression, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Nobody likes to be talked about but everybody likes to talk. Trying to stop the dissemination of private information is, however, an impingement on free expression and the freedom to observe. A freestanding “right of privacy” that violates these interests is constitutionally permissible only if it can be justified using one of the standard bases for allowing restrictions on First Amendment rights. The three most likely possibilities are that the law in question: (1) can pass strict scrutiny, (2) fall within a recognized “categorical” exception, or (3) places only an “incidental” burden on First Amendment interests. Of these three, only …

Imagining A Right To Housing, Lying In The Interstices, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This article explores whether the philosophical and constitutional predicates for the recognition of a right to housing exist in some form in our nation’s jurisprudence and political order. Part II traces the evolution of the concept of “rights” from that embraced by the country’s founders to the present, how such a right to housing would fit within the dialogue of property rights, the notion of ownership, and the interest in liberty. Part III discusses the historical role of the court in protecting housing. Part IV discusses the notion of protecting rights to housing under existing equal protection and due process …

Obligatory Health, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

The Supreme Court will soon rule on the constitutionality of the Patient Protection and Affordable Care Act passed in March 2010. Courts thus far are divided on the question whether Congress had authority under the Commerce Clause to impose the Act's "Individual Mandate" to purchase health insurance. At this moment, the public and legal debate can benefit from a clearer understanding of the underlying rights claims. This Article offers two principal contributions. First, the Article argues that, while the constitutional question technically turns on the interpretation of congressional power under the Commerce Clause, underlying these debates is a tension between …

United States V. Stevens: Win, Loss, Or Draw For Animals?, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

Robert J. Stevens, proprietor of “Dogs of Velvet and Steel,” was indicted for marketing dog-fighting videos in violation of 18 U.S.C. §48, a law criminalizing visual or auditory depictions of animals being “intentionally mutilated, tortured, wounded, or killed” if such conduct violated federal or state law where “the creation, sale, or possession [of such materials]” takes place.” The law aimed principally at makers and distributors of “crush videos” wherein women wearing high heels and depicted from the waist down, grind small animals to death. However, the language of 18 U.S.C. §48 extended to dog-fighting as well. Stevens challenged the law …

Regulatory Takings And Property Rights Confront Sea Level Rise: How Do They Roll?, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Under the Beach and Shore Preservation Act, the State of Florida is authorized to conduct extraordinarily expensive beach renourishment projects to restore damaged coastal properties. The statute advances the State’s interest in repairing the damage to the coastal ecosystem and economy caused by hurricanes, high winds, and storm surges. The effect of a renourishment project conducted under the statute is to fix the legal boundary of the littoral property owner at an Erosion Control Line. Plaintiffs in Walton County v. Stop the Beach Renourishment, Inc. claimed that the statute took their common law property rights to their boundary, which would, …

Adaptable Due Process, Jason Parkin

Elisabeth Haub School of Law Faculty Publications

The requirements of procedural due process must adapt to our constantly changing world. Over thirty years have passed since the Supreme Court in Goldberg v. Kelly and Mathews v. Eldridge adopted what appears to be a dynamic, fact-intensive approach to determining the procedures required by the Due Process Clause. Federal, state, and local government agencies responded by establishing new procedural safeguards, many of which are virtually identical to those in use today. Yet, for public benefits programs such as welfare, the intervening decades have brought striking changes. The 1996 federal welfare law created new and powerful incentives to trim the …

Government May Not Speak Out-Of-Turn, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

Johanns v. Livestock Marketing Association5 was about whether government could compel individual beef producers to pay for general beef advertising credited to "America's Beef Producers;" even if they disagreed with the message and wanted to spend their advertising money to distinguish their certified Angus or Hereford beef. That "compelled subsidy" case became the unlikely authority for a doctrine invented in Pleasant Grove City, Utah v. Summum6 that government could discriminate, based on viewpoint, on a subject for which it had no power to act. Each case has been criticized in its own right, but the attempt to make Johanns precedent …

Educating Prosecutors And Supreme Court Justices About Brady V. Maryland, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The author reviews the Supreme Court decision in Connick v. Thompson and provides a course outline, including problems, for training prosecutors on their duty to disclose materially favorable evidence to the defendant under Brady v. Maryland.

An Equal Rights Amendment To Make Women Human, Ann Bartow

Elisabeth Haub School of Law Faculty Publications

Though the Fourteenth Amendment' provides women with partial legal armament (a dull sword, a small shield), equal protection requires something twice as powerful in the form of a Twenty-Eighth Amendment that would expressly vest women with equal rights under the law. The Fourteenth Amendment has completed only half of the job.

Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

The Article's first two parts discuss the extent to which schools can legally restrict hostile student speech about school officials, should they choose to do so. Part I examines how courts have traditionally approached hostile student speech about school officials when it occurs at school, and Part II then considers how courts have been analyzing the issue when it moves off campus. In the course of this discussion, the Article identifies three key categories of such speech: (1) speech that arguably threatens toward a school official; (2) speech that is primarily vulgar about a school official; and (3) the most …

Taking Supremacy Seriously: The Contrariety Of Official Immunities, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

Immunities from suit, whether for governments or government officials, occupy a semi-sacred place in our jurisprudence. Trumpeting sovereign immunity, state and federal governments have long asserted that they are not subject to suit unless they have consented, and the courts have supported them. The U.S. Supreme Court has also created common law immunities for government officials and municipalities. Both kinds of immunity rest on a pervasive misunderstanding of English legal history and a convenient disinclination to consider the distinctive history and political philosophy that underlies the federal government. This Article does not examine the nuances of the official and municipal …

Legal Realism, Innate Morality, And The Structural Role Of The Supreme Court In The U.S. Constitutional Democracy, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

The classical rationale for judicial review of the constitutionality of legislative and executive acts is based on a deterministic assumption about the nature of constitutional legal rules. By the early twentieth century however; American legal realists persuasively questioned the determinancy of law in general and posited that indeterminate cases were decided by judicial intuitions of fairness. Social science research has discovered that self-identified liberals and conservatives predictably place different relative values on different shared moral intuitions. At the same time, neurological research suggests that humans and primates implement "decisions" before the cognitive parts of the brain are even aware that …

Judicial Interference With Effective Assistance Of Counsel, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A lawyer’s ineffective representation of a client may be attributable to a lawyer’s own personal failings. However, impairment of the right to effective assistance of counsel may also come from a trial judge’s conduct, and can takes many forms, and occur in varying circumstances. It is therefore difficult to formulate clear principles to cover all of the various situations in which a judge can undermine effective representation. The Borukhova and Mallayev case is only the most recent illustration of the way a ruling of a judge – forcing the lawyer to sum up his case without giving the lawyer adequate …

Students' Fourth Amendment Rights In Schools: Strip Searches, Drug Tests, And More, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

At the end of June 2009, the Supreme Court decided Safford Unified School District No. 1 v. Redding, a case involving the strip search of a thirteen-year-old girl at an Arizona middle school. Thus, the Court has now decided four cases regarding public school students' Fourth Amendment rights while at school and the time is ripe to take stock of this jurisprudence as a whole. The following discussion provides such an overview. As an initial matter, it is useful to divide the Court's four Fourth Amendment cases into two categories: (1) cases involving suspicion-based searches of individual students, such as …

Teens, Porn, And Video Games: Is It Time To Rethink Ginsberg?, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

This term the Supreme Court will decide whether states can constitutionally ban sales of violent videogames to minors. In reaching its decision, the Court will inevitably be faced with how to deal with Ginsberg v. New York, the case that allowed states to forbid sales of non-obscene (constitutionally "protected") pornography to persons under age 17.

The opinion in Ginsberg, if not the result, is an odd duck in First Amendment jurisprudence. It is a case that applied "rational basis" review in an area where the Supreme Court now insists on strict scrutiny. But the Court predicated its use of rational …

“Sexting” And The First Amendment, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

“Sexting” and other teen autopornography are becoming a widespread phenomenon, with perhaps 20% of teenagers admitting to producing nude or semi-nude pictures of themselves and an ever greater proportion, perhaps as many as 50%, having received such pictures from friends and classmates. It is, moreover, beginning to result in criminal prosecutions. Given the reality of changing social practices, mores and technology utilization, today’s pornography laws are a trap for unwary teens and operate, in effect, to criminalize a large fraction of America’s young people. As such, these laws and prosecutions represent a stark example of the contradictions that can occur …

Privacy Revisited: Gps Tracking As Search And Seizure, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Article discusses the facts in People v. Weaver, the majority and dissenting opinions in the Appellate Division, Third Department, and the majority and dissenting opinions in the Court of Appeals. Part II addresses the question that has yet to be decided by the U.S. Supreme Court – whether GPS tracking of a vehicle by law enforcement constitutes a search under the Fourth Amendment. Part III addresses the separate question that the Court of Appeals did not address - whether the surreptitious attachment of a GPS device to a vehicle constitutes a seizure under the Fourth Amendment. …

Bad Faith Exception To Prosecutorial Immunity For Brady Violations, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Article discusses Imbler’s adoption of absolute immunity for prosecutors. Part II discusses Imbler’s extension of absolute immunity to a prosecutor’s violation of his disclosure duty under Brady v. Maryland. Part III describes the ease with which prosecutors are able to evade the Brady rule and the difficulty of enforcing compliance with Brady. Part IV discusses the absence of any meaningful sanctions to deter and punish prosecutors for willful violations of Brady. Part V proposes a bad faith exception to absolute immunity of prosecutors for Brady violations.

“Hard Strikes And Foul Blows”: Berger V. United States 75 Years After, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

My essay examines one of the most iconic decision of the Supreme Court seventy five years later. Berger v. United States is the most eloquent and authoritative description of the prosecutor's duty "not that it shall win a case but that justice shall be done." My essay looks at why the Court decided to take up the case then, and why it has become so prominent in criminal law and ethics.

Legalism And Decisionism In Crisis, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

In the years since September 11, 2001, scholars have advocated two main positions on the role of law and the proper balance of powers among the branches of government in emergencies. This Article critiques these two approaches-which could be called Legalism and Decisionism-and offers a third way. Debates between Legalism and Decisionism turn on (1) whether emergencies can be governed by prescribed legal norms; and (2) what the balance of powers among the three branches of government should be in emergencies. Under the Legalist approach, legal norms can and should guide governmental response to emergencies, and the executive branch is …

The Government-Speech Doctrine: “Recently Minted,” But Counterfeit, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

The foci of this Article are the ill-advised creation of a government-speech doctrine in Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), and its potential for substantial First Amendment mischief particularly with respect to the establishment of religion. Created out of whole cloth, with no regard for precedent, and in a case that did not even raise the issue of government speech, the doctrine permits the government to speak with viewpoint about controversial cultural issues upon which the government has no constitutional right to act. Asked to find unconstitutional the refusal of a municipality to allow a Summum …

Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This article examines the Supreme Court’s student speech framework and argues that, in focusing exclusively on the types of student speech that can be restricted, the framework fails to build in any differentiation as to how such speech can be restricted. This is true even though there are two very distinct types of speech restrictions in schools: suppression of the speech itself; and after-the-fact punishment of the student speaker. As the student speech landscape itself gets more complex – given schools’ experimentation with new disciplinary regimes along with the tremendous rise in student cyber-speech – the blurring of that distinction …

Untangling Double Jeopardy In Mixed-Verdict Cases, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This Article attempts to describe and untangle the confusion leading up to and resulting from the Yeager decision. Part II examines the four distinct double jeopardy areas presented in Yeager, with particular emphasis on the two conflicting precedents of collateral estoppel and the non-finality of a hung jury. Part III closely examines the Yeager decision itself. Part IV analyzes Yeager in light of its tangled doctrinal history and places it in the context of the Court's several other short-lived and rapidly reversed precedents. The Article concludes that the Court's holding in Yeager is neither justified by its precedent nor adequately …

Rising Tides--Changing Title: Court To Mull Takings Issue, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The United States Supreme Court has granted certiorari in Walton County v. Stop the Beach Renourishment, Inc., where novel questions arose concerning sea level rise and constitutional property rights of beachfront landowners. In Florida, the state government owns in trust, all beach property below the mean high tide water line, while beachfront landowners own the rights to any land above the mean high tide water line. The line shifts along with beachfront as the beach expands and contracts. In this Florida case, landowners challenge a state statute, which precludes the ocean property line from shifting in favor of the private …

States Of Resistance: The Real Id Act And The Limits Of Federal Deputization Of State Agencies In The Regulation Of Non-Citizens, Shirley Lin

Elisabeth Haub School of Law Faculty Publications

The goal of this Article is to discuss the justiciability of issues arising under immigration federalism by examining the constitutionality of the REAL ID Act. Part I discusses states' authority over non-citizens and the history of "immigration federalism" jurisprudence. Part II explores key provisions of the REAL ID Act, the WHTI, and similar attempts by the federal government to deputize states to engage in citizenship-policing and immigration enforcement. It describes the acute social and economic segregation that the denial of driver's licenses to non-citizens engenders, and examines a number of theories that attempt to capture the impact of the current …

Petition Clause Interests And Standing For Judicial Review Of Administrative Lawmaking, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

One of the primary roles of agencies in the modern administrative state is the promulgation of rules and regulations governing primary conduct. Separation of powers and non-delegation concerns have evolved into very weak limits on the scope of agency lawmaking authority. Once the executive branch agencies have acted, Article III courts routinely step in to review the consistency of these regulations with congressional mandates. Particularly in the case of controversial regulations, the lawmaking process is not complete until judicial review. Entities burdened by such regulations--so called “regulatory objects”-- enjoy presumed standing to challenge the scope of agency regulations. Groups of …

Beyond Torture: The Nemo Tenetur Principle In Borderline Cases, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

The Latin phrase nemo tenetur seipsum accusare means roughly “no man has to accuse himself.” It is the basis of our rights against self incrimination and forced inculpation. It protects against three practical problems associated with confessions: (1) untrustworthy confessions; (2) involuntary confessions; and (3) confessions provoked through unacceptable force. This article argues that the Nemo tenetur principle was intended primarily to avoid the third problem: confessions obtained through improper methods. It examines the arguments for and against justifying the principle as a protection against either untrustworthy or involuntary confessions. The article also develops a framework to aid in the …

Avoiding Wrongful Convictions: Re-Examining The "Wrong-Person" Defense, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This Article reviews the history of the right to present a defense and closely examines the United States Supreme Court's modern analysis of that right. Part III analyzes the emergence of the right to present a defense that a third party committed the crime and concludes with a discussion of the Supreme Court's recent decision in South Carolina v. Holmes. Part IV then describes the current restrictive implementation of the wrong-person defense by the lower courts. Part V argues that the constitutional right to present a wrong-person defense is being insufficiently protected under current, arbitrary standards, and prescribes a constitutional …