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2009

Constitutional Law

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Articles 1 - 30 of 369

Full-Text Articles in Law

Padilla V. Kentucky: Immigration Consequences Due To The Ineffective Assistance Of Counsel, Evangeline Pittman Dec 2009

Padilla V. Kentucky: Immigration Consequences Due To The Ineffective Assistance Of Counsel, Evangeline Pittman

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.


Summary Of Stephens Media V. Dist. Court, 125 Nev. Adv. Op. No. 63, John L. Ward Dec 2009

Summary Of Stephens Media V. Dist. Court, 125 Nev. Adv. Op. No. 63, John L. Ward

Nevada Supreme Court Summaries

Review of a motion regarding two issues of first impression: (1) determining whether petitioners met the proper procedure whereby the press may file a motion to intervene in a criminal case when seeking access to juror questionnaires, and (2) whether district courts must publicly disclose juror questionnaires.


Brief For The Respondants, Holder V. Humanitarian Law Project, Nos. 08-1498, 09-89 (U.S. Dec. 22, 2009), Neal K. Katyal Dec 2009

Brief For The Respondants, Holder V. Humanitarian Law Project, Nos. 08-1498, 09-89 (U.S. Dec. 22, 2009), Neal K. Katyal

U.S. Supreme Court Briefs

No abstract provided.


Unto This Very Purpose, Neal A. Maxwell Dec 2009

Unto This Very Purpose, Neal A. Maxwell

Vol. 2: Service & Integrity

This Founders Day address was given to the J. Reuben Clark Law Society at Little America Hotel in Salt Lake City on September 4, 2003.


A Potent Federal Prosecutorial Tool: Weyhrauch V. United States, James T. Van Strander Dec 2009

A Potent Federal Prosecutorial Tool: Weyhrauch V. United States, James T. Van Strander

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.


The Lodestar Ranger: Calculating Attorneys’ Fee Awards In Perdue V. Kenny A., Rebecca Friedman Dec 2009

The Lodestar Ranger: Calculating Attorneys’ Fee Awards In Perdue V. Kenny A., Rebecca Friedman

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.


Nothing But A Northern Lynching: The Death Of Fred Hampton Revisited, Susan Rutberg Dec 2009

Nothing But A Northern Lynching: The Death Of Fred Hampton Revisited, Susan Rutberg

Publications

No abstract provided.


A First Amendment Perspective On The Construction Of Third Party Copyright Liability, Alfred C. Yen Dec 2009

A First Amendment Perspective On The Construction Of Third Party Copyright Liability, Alfred C. Yen

Boston College Law School Faculty Papers

Third-party copyright liability raises specific First Amendment problems that remain relatively unexplored. Among other things, such liability separates the danger of liability from the benefits of speaking, making key actors prone to careless censorship of speech. This Article applies the First Amendment to third-party copyright liability by drawing lessons from the famous cases of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc. It concludes that vicarious liability should be sharply curtailed, and that the application of presumed damages is constitutionally problematic in many contributory liability cases.


Demosprudence, Interactive Federalism, And Twenty Years Of Sheff V. O'Neill, Justin R. Long Dec 2009

Demosprudence, Interactive Federalism, And Twenty Years Of Sheff V. O'Neill, Justin R. Long

Law Faculty Research Publications

Professor Lani Guinier and others have recently developed a theory called "demosprudence" that explains the democracy-enhancing potential of certain types of US. Supreme Court dissents. Separately, state constitutionalists have described state constitutions' capacity to offer a base of resistance against the U.S. Supreme Court's narrow conception of individual rights. Applying these two seemingly unrelated theories to school desegregation litigation in Connecticut and to same-sex marriage litigation in Iowa, this Essay suggests that certain state constitutional decisions might function like U.S. Supreme Court dissents to enhance democratic activism. In this way, interactive federalism might usefully serve as a ...


Neo-Orthodoxy In Academic Freedom, J. Peter Byrne Dec 2009

Neo-Orthodoxy In Academic Freedom, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

This review essay analyzes two recent books that advance neo-orthodox theories of academic freedom: Matthew Finkin and Robert Post, For the Common Good: Principles of American Academic Freedom, and Stanley Fish, Save the World on Your Own Time. Both books develop principles articulated in the American Association of University Professors 1915 Declaration, which emphasize the role of faculty in advancing knowledge and the need to insulate professional evaluation of academic work from lay, political interference. This review essay defends the return to protection of the scholarly search for truth as the touchstone of academic freedom, offers critiques of the authors ...


From Choice To Reproductive Justice: De-Constitutionalizing Abortion Rights, Robin West Nov 2009

From Choice To Reproductive Justice: De-Constitutionalizing Abortion Rights, Robin West

Georgetown Law Faculty Publications and Other Works

The Essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative right that rhetorically keeps the state out of the domain of family life. As such, the decision privatizes not only the abortion decision, but also parenting, by rendering the decision to carry a pregnancy to term a choice. It thereby legitimates a minimalist state response to the problems of pregnant women who carry their pregnancies to term and ...


Jones V. Harris Associates: Shareholder Requirements For Proving A Mutual Fund Adviser’S Breach Of Fiduciary Duty, Matthew Rinegar Nov 2009

Jones V. Harris Associates: Shareholder Requirements For Proving A Mutual Fund Adviser’S Breach Of Fiduciary Duty, Matthew Rinegar

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.


On Writs Of Certiorari To The United States Court Of Appeals For The Ninth Circuit, Holder V. Humanitarian Law Project, Nos. 08-1298, 09-89 (U.S. Nov. 16, 2009), David Cole Nov 2009

On Writs Of Certiorari To The United States Court Of Appeals For The Ninth Circuit, Holder V. Humanitarian Law Project, Nos. 08-1298, 09-89 (U.S. Nov. 16, 2009), David Cole

U.S. Supreme Court Briefs

No abstract provided.


Freedom Of Speech And Contempt By Scandalizing The Court In Singapore, Jack Tsen-Ta Lee Nov 2009

Freedom Of Speech And Contempt By Scandalizing The Court In Singapore, Jack Tsen-Ta Lee

Research Collection School Of Law

The offence of scandalizing the court, a form of contempt of court, is regarded as obsolete in the United Kingdom. However, it continues to be imposed in other Commonwealth nations and remains very much alive in Singapore, having been applied in a crop of cases between 2006 and 2009. This short commentary examines one of these cases, Attorney-General v Hertzberg and others [2009] 1 Singapore Law Reports 1103, which has generated worldwide interest as it arose out of articles published in the Wall Street Journal Asia. In Hertzberg, the High Court of Singapore held that utterances by an alleged contemnor ...


The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt Nov 2009

The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt

All Faculty Scholarship

By taking their seats at “whites only” lunch counters across the South in the spring of 1960, African American students not only launched a dramatic new stage in the civil rights movement, they also sparked a national reconsideration of the scope of the constitutional equal protection requirement. The critical constitutional question raised by the sit-in movement was whether the Fourteenth Amendment, which after Brown v. Board of Education (1954) prohibited racial segregation in schools and other state-operated facilities, applied to privately owned accommodations open to the general public. From the perspective of the student protesters, the lunch counter operators, and ...


Displacement, Timothy Zick Nov 2009

Displacement, Timothy Zick

Popular Media

No abstract provided.


Death Behind Bars: Examining Juvenile Life Without Parole In Sullivan V. Florida And Graham V. Florida, Lauren Fine Nov 2009

Death Behind Bars: Examining Juvenile Life Without Parole In Sullivan V. Florida And Graham V. Florida, Lauren Fine

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.


Prioritizing Professional Responsibility And The Legal Profession: A Preview Of The United States Supreme Court’S 2009–2010 Term, Renee Newman Knake Nov 2009

Prioritizing Professional Responsibility And The Legal Profession: A Preview Of The United States Supreme Court’S 2009–2010 Term, Renee Newman Knake

Duke Journal of Constitutional Law & Public Policy Sidebar

This term, the Supreme Court is scheduled to hear ten cases on the role of attorneys and the practice of law. In doing so, the Court is departing from its normal practice of hearing two, or at most three, cases on professional responsibility. Prof. Renee Knake of Michigan State University College of Law reviews the professional responsibility cases on the Court's docket and examines how they could influence the practice of law.


Constitutional Solipsism: Toward A Thick Doctrine Of Article Iii Duty; Or Why The Federal Circuits’ Nonprecedential Status Rules Are (Profoundly) Unconstitutional, Penelope J. Pether Oct 2009

Constitutional Solipsism: Toward A Thick Doctrine Of Article Iii Duty; Or Why The Federal Circuits’ Nonprecedential Status Rules Are (Profoundly) Unconstitutional, Penelope J. Pether

Working Paper Series

Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, Not Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 ARIZ. ST. L.J. 1 (2007), documented the de facto delegation of the majority of Article III judicial power to inadequately supervised non-judicial actors, and the origins of nonprecedential status rules in the federal bench’s mistrust of the accuracy of the judging done in its name.

Constitutional Solipsism takes up the repeated suggestions by federal courts and organs of the Federal Judicial Conference that the circuits’ ubiquitous nonprecedential status rules are unconstitutional. Mapping, analyzing, and substantially supplementing scattered, thin, and inconclusive scholarly analyses, largely published in the wake of the decision in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000), it is the first comprehensive analysis of the constitutionality question. In addition to considering previously unexplored yet salient constitutional doctrine, including the “fundamental interests” jurisprudence articulating the constitutional right of access to the courts, and non-delegation doctrine, the Article departs from predecessor scholarship by considering the rules in the contexts that they justify and enable: the delegation of Article III power to inadequately supervised adjuncts, and the abbreviated adjudicatory processes that arguably deny plenary appeals to the majority of federal appellants, substituting an unsafe certiorari process for appeals as of right.

Relying principally on a critical reading of the leading inherent Article III power cases and authority on the powers “essential to the administration of justice,” and the constitutional logic of bodies of doctrine including fundamental interests and non-delegation doctrine, as well as on the limits on the circuits’ formal rulemaking power, Constitutional Solipsism concludes that the rules and the practices that underpin them are profoundly unconstitutional, because ultra vires Article III power. It goes on to argue both that the constitutional solipsism that characterizes the courts’ inherent power jurisprudence and their judging practices calls for a thick constitutionalist doctrine of judicial duty, and not just of power; and that the most recent developments in “post-9/11 constitutional” jurisprudence suggest the ripeness ...


Cruelty, Prison Conditions, And The Eighth Amendment, Sharon Dolovich Oct 2009

Cruelty, Prison Conditions, And The Eighth Amendment, Sharon Dolovich

Georgetown Law Faculty Publications and Other Works

The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel. For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not “punishment” within the meaning of the Eighth Amendment. Farmer’s reasoning, however, does ...


Section 5: Individual Rights, Institute Of Bill Of Rights Law At The William & Mary Law School Oct 2009

Section 5: Individual Rights, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Brief Of Eleven Law Professors And Aarp As Amici Curiae In Support Of Respondent, Bilski V. Kappos, 130 S. Ct. 3218 (2010) (No. 08-964), Joshua Sarnoff, Lori Andrews, Andrew Chin, Ralph Clifford, Christine Farley, Sean Flynn, Debra Greenfield, Peter Jaszi, Charles Mcmanis, Lateef Mtima, Malla Pollack Oct 2009

Brief Of Eleven Law Professors And Aarp As Amici Curiae In Support Of Respondent, Bilski V. Kappos, 130 S. Ct. 3218 (2010) (No. 08-964), Joshua Sarnoff, Lori Andrews, Andrew Chin, Ralph Clifford, Christine Farley, Sean Flynn, Debra Greenfield, Peter Jaszi, Charles Mcmanis, Lateef Mtima, Malla Pollack

Amicus Briefs

This is the brief filed by Joshua Sarnoff and Barbara Jones on behalf of various law professors and AARP in the Bilski v. Kappos case, discussing constitutional limits to the Patent power.


The Nebraska State Constitution: A Reference Guide (2d Ed. 2009): Table Of Cases, Anthony B. Schutz Oct 2009

The Nebraska State Constitution: A Reference Guide (2d Ed. 2009): Table Of Cases, Anthony B. Schutz

Nebraska State Constitution

No abstract provided.


From Privacy To Liberty: The Fourth Amendment After Lawrence, Thomas P. Crocker Oct 2009

From Privacy To Liberty: The Fourth Amendment After Lawrence, Thomas P. Crocker

Faculty Publications

This Article explores a conflict between the protections afforded interpersonal relations in Lawrence v. Texas and the vulnerability experienced under the Fourth Amendment by individuals who share their lives with others. Under the Supreme Court's third-party doctrine, we have no constitutionally protected expectation of privacy in what we reveal to other persons. The effect of this doctrine is to leave many aspects of ordinary life shared in the company of others constitutionally unprotected. In an increasingly socially networked world, the Fourth Amendment may fail to protect precisely those liberties-to live in the company of others free from state surveillance ...


Same-Sex Relationships And The Full Faith And Credit Clause: Reducing America To The Lowest Common Denominator, Rena M. Lindevaldsen Oct 2009

Same-Sex Relationships And The Full Faith And Credit Clause: Reducing America To The Lowest Common Denominator, Rena M. Lindevaldsen

Faculty Publications and Presentations

This Article examines the legal and policy implications that arise when a state that expressly prohibits recognition or enforcement of any rights arising from a same-sex relationship is confronted with a request to register and enforce a child custody order issued by another state that gives custody or visitation rights to a biological mother's former same-sex partner. As more states confer marital rights to same-sex couples, this issue will occur with increasing frequency. The first reported case in the nation to address the issue, Miller-Jenkins v. Miller-Jenkins, has garnered attention from the national media, including a cover story in ...


Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan Oct 2009

Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan

Scholarly Publications

Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of ...


State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael Wells, Alice Snedeker Oct 2009

State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael Wells, Alice Snedeker

Scholarly Works

Several years ago, in Village of Willowbrook v. Olech, the Supreme Court recognized a 'class-of-one' Equal Protection theory, under which individuals charging that they were singled out for arbitrary treatment by officials may sue for vindication. Last term, in Engquist v. Oregon Department of Agriculture, the Court barred recourse to this type of claim on the part of government employees. The reasoning of Engquist, which emphasizes the discretionary nature of employment decisions, threatens to eliminate a wide range of class-of-one claims outside the employment area as well. There is a pressing need for an alternative. This article proposes another basis ...


Ineffective Assistance Of Counsel And The U.S. Supreme Court: History And Development Of A Constitutional Standard, Virginia Hatch Oct 2009

Ineffective Assistance Of Counsel And The U.S. Supreme Court: History And Development Of A Constitutional Standard, Virginia Hatch

Criminal Justice Graduate Projects and Theses

The purpose of this research project is to complete an exhaustive review of the U.S. Supreme Court cases in which the Court ruled on ineffective assistance of counsel (IAC) claims. The cases are examined to study how the Supreme Court has interpreted the constitutional right to effective counsel. Further, I examined how the standard for judging IAC claims has evolved since its first recognition by the Supreme Court. There are 46 decisions by the Court that address IAC claims. In addition to reviewing the case law, relevant law reviews and social science academic journal articles are examined and incorporated ...


Reasonableness As A Rule: A Paean To Justice O'Connor's Dissent In Atwater V. City Of Lago Vista, Wayne A. Logan Oct 2009

Reasonableness As A Rule: A Paean To Justice O'Connor's Dissent In Atwater V. City Of Lago Vista, Wayne A. Logan

Scholarly Publications

This paper, part of a symposium dedicated to “great” Fourth Amendment dissents, examines Justice Sandra Day O’Connor's dissent in Atwater v. City of Lago Vista (2001), where by a 5-4 vote the Court upheld the constitutionality of warrantless police arrests for non-breach of the peace, fine-only offenses. In addition to rightfully condemning the majority's decision to equate probable cause with constitutional reasonableness, in principle, Justice O’Connor presciently recognized the numerous liberty and privacy-restricting consequences of the outcome for the “everyday lives of Americans.” Atwater, combined with decisions issued before and after it, including Whren v. United ...


In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand Oct 2009

In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand

Scholarly Works

In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to re-think the role of the Supreme Court and, consequently, the process by which we select Supreme Court justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation ...