Law Commons^™

The Many Faces Of Iqbal, Rosalie Berger Levinson

Law Faculty Publications

No abstract provided.

Congress Needs To Repair The Court's Damage To § 1983, Ivan E. Bodensteiner

Law Faculty Publications

Today it is not unusual for a § 1983 plaintiff to establish a violation of the U.S. Constitution and resulting injuries, yet be denied damages because of the Supreme Court's misinterpretation of the 1871 statute. This anomaly is the result of several defenses created by the Court, including absolute and qualified immunity, the rejection of respondeat superior liability for municipalities, and the expansion of sovereign immunity, based, in part, on a misinterpretation of the Eleventh Amendment. Several other rulings of the Court narrow the circumstances under which private parties are subject to § 1983 liability, refuse to exempt § 1983 …

Dickens Redux: How American Child Labor Law Became A Con Game, Seymour Moskowitz

Law Faculty Publications

Millions of American teens are employed today in a variety of workplaces. The jobs they hold typically provide little human capital for their future economic self·sufficiency, and pose substantial immediate and long-term safety, academic, and behavioral risks for this generation. This Article seeks to answer the question of how American law and society reached this situation, which has such disastrous effects for working youth, their families, and society as a whole. Three main themes are developed:

1. Child labor has always been part of the American economy, from colonial times until today. While there have been more than 150 years …

Time To Bury The Shocks The Conscience Test, Rosalie Berger Levinson

Law Faculty Publications

The Supreme Court has acknowledged that "the Due Process Clause, like its forebear in the Magna Carta, was 'intended to secure the individual from the arbitrary exercise of the powers of government'...to prevent governmental power from being 'used for purposes of oppression.'"¹ Historically, Magna Carta was aimed a·t limiting the power of the king. Today, substantive due process is invoked to challenge arbitrary deprivations of life, liberty, and property by officials, such as police officers, jail guards, public-school educators, public employers, and members of zoning boards. However, the Supreme Court has emasculated its efficacy as a limitation on executive …

Draining The Morass: Ending The Jurisprudentially Unsound Unpublication System, David R. Cleveland

Law Faculty Publications

No abstract provided.

Dred Scott: Tiered Citizenship And Tiered Personhood, Henry L. Chambers, Jr.

Law Faculty Publications

Part I of this brief essay discusses Dred Scott and the Court's acceptance of tiered citizenship and tiered personhood. Part II discusses the Reconstruction Amendments as a response to tiered citizenship and tiered personhood. Part III notes two issues-felon disfranchisement and the treatment of detainees in the War on Terror-that help illuminate tiered citizenship and tiered personhood and help us evaluate the conditions under which citizenship and personhood rights may be restricted without creating tiers of citizenship and tiers of personhood.

Discrimination, Plain And Simple, Henry L. Chambers, Jr.

Law Faculty Publications

This short essay is a brief examination of the Court's relatively recent attempts to simplify Title VII and employment discrimination; it is not intended to be a comprehensive review of the Court's discrimination jurisprudence. Rather, it seeks to identify a few concerns with and implications of the Court's apparent desire to simplify Title VII jurisprudence. Part I briefly examines how the Court has simplified employment discrimination through Hicks and Oncale. Part II examines how the Court's simplifications have been used. Part III suggests concerns that should accompany the Court's simplification.

Confronting The Reluctant Accomplice, John G. Douglass

Law Faculty Publications

The Supreme Court treats the Confrontation Clause as a rule of evidence that excludes unreliable hearsay. But where the hearsay declarant is an accomplice who refuses to testify at defendant's trial, the Court's approach leads prosecutors and defendants to ignore real opportunities for confrontation, while they debate the reliability of hearsay. And even where the Court's doctrine excludes hearsay, it leads prosecutors to purchase the accomplice's testimony through a process that raises equally serious questions of reliability. Thus, the Court's approach promotes neither reliability nor confrontation. This Article advocates an approach that applies the Confrontation Clause to hearsay declarants in …

In Pursuit Of The Elusive Fourth Amendment: The Police Chase Cases, Ronald J. Bacigal

Law Faculty Publications

The first section of this article considers whether the police officer's intent is an indispensable component of fourth amendment seizures. The second section of the article addresses the Court's efforts to define a seizure· by focusing upon the objective causal link between an officer's efforts to apprehend a suspect and the suspect's attempt to avoid apprehension.

Hearings On Jury Bias Or Misconduct, Ronald J. Bacigal

Law Faculty Publications

In the recent cases of Smith v. Phillips, and Rushen v. Spain, the United States Supreme Court recognized that judicial review of ex parte contacts with a sitting jury may raise a number of separate but interrelated constitutional rights: (1) the right to an impartial jury; (2) the right to a due process post-trial hearing on jury bias; (3) a possible due process right to a mid-trial hearing on jury bias; (4) the defendant's right to be present at such mid· trial hearings; and (5) the right to be represented at such mid-trial hearings. As Justice Stevens noted in his …

Warrantless Searches And Seizures In Virginia, Ronald J. Bacigal

Law Faculty Publications

There is a well-recognized lack of consistency and clarity in fourth amendment decisions. At times, each search and seizure case seen is unique and the decisions appear to rest on factual determinations rather than on legal principles. Nonetheless, it is desirable to have some understanding of the basic principles of the fourth amendment, and the way in which these principles affect individual cases.

The Jury As A Source Of Reasonable Search And Seizure Law, Ronald J. Bacigal

Law Faculty Publications

The definition of a reasonable search has bedeviled the United States Supreme Court for some ninety years. Formal logic or legal reasoning assists the Court in tracing premise to conclusion, but does not alone suggest the initial premise. The Court's difficulty in fourth amendment cases, in general, lies in identifying the premise-the fundamental value which is embodied in this constitutional guarantee. The Court has recognized that this fundamental value, whatever it is, has an origin outside the language of the amendment, and the Court has considered sources such as history, popular consensus, natural law, and utilitarian balancing to find this …