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Articles 1 - 4 of 4
Full-Text Articles in Law
Second Amendment Plumbing After Heller: Of Incorporation, Standards Of Scrutiny, Well-Regulated Militias And Criminal Street Gangs, Lawrence Rosenthal
Second Amendment Plumbing After Heller: Of Incorporation, Standards Of Scrutiny, Well-Regulated Militias And Criminal Street Gangs, Lawrence Rosenthal
Lawrence Rosenthal
The decision of the United States Supreme Court in District of Columbia v. Heller ended one debate about the Second Amendment while beginning another.
Prior to Heller, the principal point on which courts and scholars had joined issue was whether the Second Amendment secures an individual right to bear arms or a right to participate in an organized militia. In Heller, the Court came down on the individual-rights side while resolving little else about the extent to which the Second Amendment will constrain the power to regulate firearms. Among the many questions left for future litigation, the two most important …
Confusing Cause And Effect, Lawrence Rosenthal
Confusing Cause And Effect, Lawrence Rosenthal
Lawrence Rosenthal
This brief essay commenting on Paul Butler's article, "Race Based Jury Nullification: Black Power in the Criminal Justice System," prepared for the Criminal Law Conversations project, argues that Professor Butler's proposal of race-based jury nullification to address the African-American community's perception of racial injustice in the administration of the criminal laws, particularly the drug laws, confuses cause and effect. The most important cause of African-American dissatisfaction with the criminal justice system is its inability to keep inner-city communities safe. A regime of race-based jury nullification, in turn, would aggravate rather than ameliorate this serious problem.
The New Originalism Meets The Fourteenth Amendment: Original Public Meaning And The Problem Of Incorporation, Lawrence Rosenthal
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 …
Probability, Probable Cause, And The Law Of Unintended Consequences, Lawrence Rosenthal
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.