Law Commons^™

Rationalizing Rational Basis Review, Todd W. Shaw

Northwestern University Law Review

As a government attorney defending economic legislation from a constitutional challenge under the Fourteenth Amendment—How would you rate your chances of success? Surely excellent. After all, hornbook constitutional law requires only the assembly of a flimsy underlying factual record for economic legislation to pass rational basis review.

But the recent uptick in courts questioning the credibility of legislative records might give pause to your optimism. As a growing body of scholarship has identified, the Supreme Court and federal courts of appeals increasingly invalidate laws under rational basis review despite the presence of an otherwise constitutionally sufficient legislative record. Under this …

Due Process Abroad, Nathan S. Chapman

Northwestern University Law Review

Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. In February, the Supreme Court heard oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican teenager across the border. At the same time, federal courts across the country scrambled to evaluate the constitutionality of an Executive Order that, among other things, deprived immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause—the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, or property”—remains obscure.

Up to now, scholars …

Ocr's Bind: Administrative Rulemaking And Campus Sexual Assault Protections, Sheridan Caldwell

Northwestern University Law Review

During President Barack Obama’s Administration, significant light was shed on the depth of the United States’ campus sexual assault problem. As a result, the Department of Education’s Office for Civil Rights increased enforcement of Title IX provisions by way of its 2011 “Dear Colleague Letter.” This Note argues that the Dear Colleague Letter was improperly enforced as if it were a formal legislative rule and was therefore illegitimate. Nevertheless, this Note contends that the preponderance of the evidence standard initially enshrined within the Dear Colleague Letter should be adopted through the notice-and-comment procedures President Donald Trump’s Administration promises in order …

Usada V. Montgomery: Paving A New Path To Conviction In Olympic Doping Cases, Paul J. Greene

Maine Law Review

In United States Anti-Doping Agency v. Montgomery, a Court of Arbitration for Sport (CAS) Tribunal found Olympic track and field gold medalist and former world record holder Tim Montgomery (Montgomery) guilty of doping. The Tribunal determined, after considering the evidence presented by the United States Anti-Doping Agency (USADA), that Montgomery had taken THG, a prohibited performance enhancing drug known in colloquial parlance as "the Clear." As punishment, Montgomery was banned from competition for two years, stripped of his on-track achievements dating back to March 200l, and ordered to repay an estimated $1 million in earnings. Montgomery is an extraordinary case …

The Next Step In Civil Asset Forfeiture Reform: Passing The Civil Asset Forfeiture Reform Act Of 2014, Daniel Reed

Catholic University Law Review

Civil asset forfeiture is an operation of legal fiction that enables the government to seize property without an underlying conviction of the property owner. Federal authorities bring thousands of civil asset forfeiture cases annually, often against the property of owners who have not been charged with a crime. Such cases can result in unjust outcomes and denials of due process to property owners. To address this controversy, Representative Tim Walberg proposed several reforms to federal civil asset forfeiture laws known as the Civil Asset Forfeiture Reform Act of 2014 (CAFRA 2014).

After discussing the history of civil asset forfeiture, this …

Comparative Perspectives On Specialized Trials For Terrorism, Sudha Setty

Maine Law Review

President Obama has made clear that the United States must grapple with questions of how to detain and try potentially dangerous terrorism suspects in a manner that maximizes national security while adhering to the rule of law. Yet the United States faces a serious quandary in terms of how to prosecute suspects who have been detained at Guantanamo Bay, Cuba, that puts at risk the reputation of the United States justice system and its adherence to rule of law. The question of what trial system to use for suspected terrorists requires an historical interrogation of how and to what effect …

Saving Title Ix: Designing More Equitable And Efficient Investigation Procedures, Emma Ellman-Golan

Michigan Law Review

In 2011, the Department of Education’s Office of Civil Rights (OCR) issued guidance on Title IX compliance. This guidance has resulted in the creation of investigative and adjudicatory tribunals at colleges and universities receiving federal funds to hear claims of sexual assault, harassment, and violence. OCR’s enforcement efforts are a laudable response to an epidemic of sexual violence on college campuses, but they have faced criticism from administrators, law professors, and potential members of the Trump Administration. This Note suggests ways to alter current Title IX enforcement mechanisms to placate critics and to maintain OCR enforcement as a bulwark against …

Of Principle And Prudence: Analyzing The F.B.I.'S Reluctance To Electronically Record Interrogations, Kristian Bryant Rose

Oklahoma Journal of Law and Technology

No abstract provided.

Enhanced Campaing Finance Disclosure And Recusal Rules To Offset The Influence Of Dark Money In State Supreme Court Elections, Cathy R. Silak, Emily Siess Donnellan

University of Arkansas at Little Rock Law Review

No abstract provided.

Holding Supporters Of Terrorism Accountable: The Exercise Of General Jurisdiction Over The Pa And Plo In A Post-Daimler Framework, Mark D. Christopher

Georgia Journal of International & Comparative Law

No abstract provided.

Running The Race: An Evaluation Of Post-Race-To-The-Top Modifications To Teacher Tenure Laws And A Recommendation For Future Legislative Changes, Kimberly M. Rippeth

Akron Law Review

Teacher tenure laws have been in existence for almost a century. However, in that time, teacher tenure has been under fire by individuals who consider it outdated and irrelevant. Additionally, teacher tenure laws have come under fire in recent decades due to a shift in education policy as a result of initiatives such as No Child Left Behind and Race to the Top. This article offers a closer look at the evolution of teacher tenure laws over the past century in order to understand and evaluate the wave of recent state legislation changes regarding teacher tenure laws. These changes, largely …

The Silver State And The Black Book, Steven J. Brody Esq

UNLV Gaming Law Journal

No abstract provided.

Finding A Right To Remain: Immigration, Deportation, And Due Process, Simon Y. Svirnovskiy

Northwestern Journal of Law & Social Policy

No abstract provided.

With Liberty And Justice For Some: Denial Of Meaningful Due Process In School Disciplinary Actions In Ohio, Genevieve Vince

Cleveland State Law Review

Students face many different obstacles in school and arbitrary exclusion should not be one of them. Despite the Supreme Court stating that students do not shed their rights at the schoolhouse gate, they in fact do shed their rights. This Note examines how school disciplinary actions deny students meaningful due process. It discusses the foundation of modern due process, including what other rights have been incorporated into the contemporary understanding of due process as well as its historic roots. Additionally, this Note explores the case that established the procedures required of school administrators to comport with a student’s right to …

Adrift At Sea: How The United States Government Is Forgoing The Fourth Amendment In The Prosecution Of Captured Terrorists, Frank Sullivan

Penn State Journal of Law & International Affairs

No abstract provided.

Virginia’S Interpretation Of Ake V. Oklahoma: A Hollow Right, Andrew Monaghan Higgins

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Justice For Noncitizens: A Case For Reforming The Immigration Legal System, Anna Paden Carson

VA Engage Journal

The immigration legal system exists as a function of the executive branch rather than the judicial branch, and many of the constitutional rights guaranteed in a judicial court do not continue into the immigration legal sphere. Noncitizen defendants in the immigration court system are not guaranteed the same due process rights or right to appointed counsel as United States citizens, which severely limits their chance of a successful outcome. Moreover, while many noncitizens await their trials in these courts, they are often placed in one of the 234 immigration detention facilities across the nation, which further exacerbates the direness of …

Title Ix Sexual Assault Investigations In Public Institutions Of Higher Education: Constitutional Due Process Implications Of The Evidentiary Standard Set Forth In The Department Of Education's 2011 Dear Colleague Letter, Lance Toron Houston

Hofstra Labor & Employment Law Journal

This Article examines the constitutional due process impact of the vastly opposite and conflicting standards of review in Title IX sexual assault investigations. Thousands of unionized public employees are subject to the terms and conditions of a public university collective bargaining agreement, which requires a heightened standard of "clear and convincing evidence" to discipline employees. At the same timeperhaps unknowingly-the employee is also held to the strict federally mandated standard of a "preponderance of the evidence," which has a lower standard of review. In short, under the same facts and within the same Title IX investigation, the employee is subject …

Reforming Sec Alj Proceedings, Joanna Howard

University of Michigan Journal of Law Reform

This Note considers the current constitutional challenges to SEC administrative proceedings and suggests process reforms to enhance fairness for respondents. Challenges have developed since the Dodd-Frank Act expanded the SEC’s ability to use administrative proceedings. Arguments that there is a pre-existing flaw in the method of appointing administrative law judges provide the most potential for success. The Tenth Circuit’s December 2016 decision against the SEC in Bandimere has created a split, diverging from the D.C. Circuit’s analysis of that question in Lucia. Resolution by the Supreme Court may be inevitable. Even if the challengers do ultimately succeed, this will …

My Life In Crime: An Intellectual History Of The Juvenile Court, Barry C. Feld

Nevada Law Journal

No abstract provided.

Pursuing Gault, David S. Tanenhaus, Eric C. Nystrom

Nevada Law Journal

No abstract provided.

From Suspended To Destitute: The Disproportionate Effect Of Out-Of-School Suspensions On Low-Income Families, Francesca Hoffmann

Indiana Journal of Law and Social Equality

No abstract provided.

Sub Judice And Free Speech: Balancing The Right To A Fair Trial Against Freedom Of Expression In Israel, Boaz Shnoor, Doron Menashe

San Diego International Law Journal

Over the past few years, a relatively large number of cases have arisen in Israel, in which media publications have allegedly influenced criminal proceedings. The Supreme Court of Israel has issued a number of inconsistent decisions regarding such publications.

In this Article, we will study the sub judice prohibition, analyze the concern of undue influence of media publications in criminal cases in light of contemporary behavioral literature, discuss the various approaches found in contemporary Israeli case law, and propose a new and better model.

Fair For Whom? Why Debt-Collection Lawsuits In St. Louis Violate The Procedural Due Process Rights Of Low-Income Communities, Aimee Constantineau

American University Law Review

No abstract provided.

The Cost Of Comfort: Protecting A Criminal Defendant’S Constitutional Rights When Child Witnesses Request Comfort Accommodations, Angela Nascondiglio

NYLS Law Review

No abstract provided.

Apple Of Gold And Picture Of Silver: How Abraham Lincoln Would Analyze The Fourteenth Amendment's Equal Protection Clause, Frank J. Williams, William D. Bader, Andrew Blais

Roger Williams University Law Review

No abstract provided.

Where Sex Offender Registration Laws Miss The Point: Why A Return To An Individualized Approach And A Restoration Of Judicial Discretion In Sentencing Will Better Serve The Governmental Goals Of Registration And Protect Individual Liberties From Unnecessary Encroachments, Justin P. Rose

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

The Practitioner’S Guide To Due Process Issues In Veteranstreatment Courts, Evan C. Tsai

Mitchell Hamline Law Review

No abstract provided.

A Regulatory Theory Of Legal Claims, Maria J. Glover

Vanderbilt Law Review

Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve "substantive justice" and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims-are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions …

Proposing A One-Year Time Bar For 8 U.S.C. § 1226(C), Jenna Neumann

Michigan Law Review

Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) requires federal detention of certain deportable noncitizens when those noncitizens leave criminal custody. This section applies only to noncitizens with a criminal record (“criminal noncitizens”). Under section 1226(c), the Attorney General must detain for the entire course of his or her removal proceedings any noncitizen who has committed a qualifying offense “when the alien is released” from criminal custody. Courts construe this phrase in vastly different ways when determining whether a criminal noncitizen will be detained. The Board of Immigration Appeals (BIA) and the Fourth Circuit read “when …