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Trending @ Rwu Law: Dean Yelnosky's Post: 24: Dean Style 3-6-2017, Michael Yelnosky

Law School Blogs

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Random If Not "Rare"? The Eighth Amendment Weaknesses Of Post-Miller Legislation, Kimberly Thomas

Articles

First, this Article surveys the U.S. Supreme Court's decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes. Second, this Article examines the state legislative response to Miller, and scrutinizes it with the Court's Eighth Amendment death penalty law-and the states' responses to this case law-in mind. This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of …

Mccrory V. Harris: Constitutional Prohibitions On Racial Classifications And The Requirements Of The Voting Rights Act In Redistricting, Alex Dietz

Duke Journal of Constitutional Law & Public Policy Sidebar

In McCrory v. Harris, the Supreme Court is faced with yet another redistricting case: Are the first and twelfth Congressional Districts in North Carolina the result of impermissible racial gerrymandering? The parties' dispute centers around two questions: In what circumstances is race the predominant factor in a state legislature's redistricting plan? And in what circumstances is the use of race as a predominant factor in redistricting plans an impermissible racial gerrymander? This Commentary will provide a summary and analysis of the arguments presented for the Court's review, and argue that both North Carolina Congressional Districts should be struck down …

Moore V. Texas: Balancing Medical Advancements With Judicial Stability, Emily Taft

Duke Journal of Constitutional Law & Public Policy Sidebar

In Moore v. Texas, the Supreme Court will consider whether the Eighth Amendment requires States to adhere to a particular organization’s most recent clinical definition of intellectual disability in determining whether a person is exempt from the death penalty under Atkins v. Virginia and Hall v. Florida. Generally, the Supreme Court has carved away at the death penalty with each new case it takes. This commentary argues that the Supreme Court should not continue that trend in this case and should find for Texas because the state’s intellectual disability determination is consistent with the Eighth Amendment under Atkins …

Flight Risk Or Danger To The Community? Rodriguez And The Protection Of Civil Liberties In The U.S. Immigration System, Charlie Kazemzadeh

Duke Journal of Constitutional Law & Public Policy Sidebar

Upon arrival to the United States, foreign nationals are required to prove beyond a doubt that they comply with the various requirements for admission into the country. For those who fail to meet this standard, there are only two options: accept immediate removal to their country of origin, or fight removal. For many who contest their deportation, their fate is civil incarceration until their case is adjudicated, which can take several years. The case of Jennings v. Rodriguez addresses the constitutionality of prolonged civil incarceration without the access of mandatory, periodic bond hearings for these individuals.

Textualism And Originalism In Constitutional Interpretation, John M. Greabe

Law Faculty Scholarship

[Excerpt] "In a 2016 lecture at the Case Western Reserve University School of Law, Judge Neil Gorsuch warmly praised former Supreme Court Justice Antonin Scalia's approach to constitutional interpretation. Because President Trump has nominated him to serve on the Supreme Court, it is important to understand the approach Judge Gorsuch favors."

A House Built On Shifting Sands: Standing Under The Fair Housing Act After Thompson V. North American Stainless, Eric Vanderhoef

Duke Journal of Constitutional Law & Public Policy Sidebar

For decades, the Supreme Court construed standing under the Fair Housing Act broadly; any party could bring suit as long as it met Constitutional Standing requirements. In January 2011, in Thompson v. North American Stainless, the Court restricted standing under Title VII—a statute with similar empowering language to the Fair Housing Act. The Court will address Fair Housing Act standing post-Thompson in Bank of America Corp. v. City of Miami. This commentary argues that standing under the Fair Housing Act should be restricted. Additionally, it argues that the allegations of the Plaintiff-Respondent, City of Miami, of widespread reductions in tax …

Judge Gorsuch On Empathy And Institutional Design, Peter Margulies

Law Faculty Scholarship

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Update On Student Vaccinations, Charles J. Russo

Educational Leadership Faculty Publications

State inoculation laws—which are designed to reduce or eliminate the risk of infection from the most common communicable diseases—typically grant students with medical concerns exemptions from having to receive vaccines or vaccine components. Moreover, as reflected in the cases discussed below, most states allow nonmedical exemptions for religious reasons and philosophical beliefs (National Vaccine Information Center 2016).

As reviewed in the next section, disputes over vaccinations generated a fair amount of litigation. In these cases, parents challenged vaccination laws as violating their constitutional rights to be free from government interference or to freedom of religion.

Precedent And Speech, Randy J. Kozel

Journal Articles

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.

The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …

Federalist Court: How The Federalist Society Became The De Facto Selector Of Republican Supreme Court Justices, Lawrence Baum, Neal Devins

Popular Media

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Brief Of The National Association For Public Defense, Et Al As Amici Curiae Supporting Petitioner, Christeson V. Roper (U.S. January 30, 2017) (No. 16-7730)., Janet Moore

Faculty Articles and Other Publications

This case involves federal courts doubling down on the effective denial of counsel to a severely mentally impaired capital habeas petitioner on the eve of his execution, thereby preventing the full and fair litigation of an issue that demands this Court’s attention: the role played by a petitioner’s mental impairment in determining whether equitable tolling applies to the statute of limitations for filing a habeas petition. This Court should grant the petition to address whether the denial of adequate funding in this case constituted a constructive denial of the right to counsel required by the capital representation statute, 18 U.S.C. …

Newsroom: Order Violates Roger Williams' Principles 01-30-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

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Violating Equal Protection: Lynch V. Morales-Santana And The Ina’S Sex Discriminatory Physical Presence Requirement, Courtney Magnus

Duke Journal of Constitutional Law & Public Policy Sidebar

In Lynch v. Morales-Santana, the Supreme Court will consider whether the Immigration and Nationality Act’s physical presence requirement scheme violates the Fifth Amendment’s equal protection guarantee. Under 8 U.S.C. §§ 1401(a)(7) and 1409(c) (1952), an unwed U.S. citizen father wishing to convey citizenship at-birth to his child born abroad cannot do so unless he has been physically present in the United States for ten years prior to the child’s birth. In contrast, an unwed citizen mother only needs to be physically present for one continuous year. This commentary argues that because §§ 1401 and 1409 facially discriminate against unwed …

Emerging Constitutional Conflicts And The Role Of Courts, John M. Greabe

Law Faculty Scholarship

[Excerpt] "When a court exercises judicial review, it tells Congress, the executive branch or a state to refrain from action that is under way or to take some action that is not being taken. Either way, a democratically accountable institution is told that it cannot do what the people (presumably) want it to do, or that it must do what the people (presumably) do not want it to do."

A New Balance Of Evils: Prosecutorial Misconduct, Iqbal, And The End Of Absolute Immunity, Mark C. Niles

Faculty Publications

Criminal prosecutors wield immense power in the criminal justice system. While the majority of prosecutors exercise this power in a professional manner, there is compelling evidence of a serious and growing problem of prosecutorial misconduct in this country. Although much prosecutorial misconduct results in the violation of the constitutional and other legal rights of criminal defendants, prosecutors are protected from any liability arising from these violations in all but the most exceptional cases by the defense of absolute immunity. The US. Supreme Court has justified the application of absolute prosecutorial immunity, in part, by noting that other means of incentivizing …

Soft Supremacy, Corinna Barrett Lain

Law Faculty Publications

The debate over judicial supremacy has raged for more than a decade now, yet the conception of what it is we are arguing about remains grossly oversimplified and formalistic. My aim in this symposium contribution is to push the conversation in a more realistic direction; I want those who claim that judicial supremacy is antidemocratic to take on the concept as it actually exists. The stark truth is that judicial supremacy has remarkably little of the strength and hard edges that dominate the discourse in judicial supremacy debates. It is porous, contingent- soft. And the upshot of soft supremacy is …

Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael Yelnosky

Law Faculty Scholarship

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Franchise Tax Board Of California V. Hyatt: A Split Court, Full Faith And Credit, And Federal Common Law, Jonathan M. Gutoff

Law Faculty Scholarship

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Applying Strict Scrutiny: An Empirical Analysis Of Free Exercise Cases, Caleb C. Wolanek, Heidi H. Liu

All Faculty Scholarship

Strict scrutiny and the free exercise of religion have had an uneasy relationship in American jurisprudence. In this Article, we trace the history of strict scrutiny in free exercise cases and outline how it applies today. Then, using a unique dataset of cases from a 25-year period, we detail the characteristics of these cases. Finally, we discuss the implications for future cases. Our research indicates that even though claimants currently win a large percentage of cases, those victories might not be durable.

Undignified: The Supreme Court, Racial Justice, And Dignity Claims, Darren L. Hutchinson

Faculty Articles

The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the …

Hitting The "Bullseye" In Supreme Court Coverage: News Quality In The Court's 2014 Term, Michael A. Zilis, Justin Wedeking, Alexander Denison

Political Science Faculty Publications

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Checking The Government’S Deception Through Public Employee Speech, Helen Norton

Publications

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Standing After Snowden: Lessons On Privacy Harm From National Security Surveillance Litigation, Margot E. Kaminski

Publications

Article III standing is difficult to achieve in the context of data security and data privacy claims. Injury in fact must be "concrete," "particularized," and "actual or imminent"--all characteristics that are challenging to meet with information harms. This Article suggests looking to an unusual source for clarification on privacy and standing: recent national security surveillance litigation. There we can find significant discussions of what rises to the level of Article III injury in fact. The answers may be surprising: the interception of sensitive information; the seizure of less sensitive information and housing of it in a database for analysis; and …

Cutting Through: Thirteen Ways Of Looking At Justice Stevens, Abner S. Greene

Faculty Scholarship

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The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis, P. Thomas Distanislao, Iii

Law Student Publications

The scene is the main reading room in the Supreme Court library. It is 12:01 AM on a Thursday night, and a hapless law clerk' named Madison Nomos' is working on a draft of a dissenting opinion for his Justice. Specifically, Nomos is researching whether an earlier Supreme Court case- one with which his Justice vehemently disagrees- should play a significant role in the Court's analysis of an issue that has gripped the nation. Nomos's Justice was recently confirmed, and this will be her first opportunity to firmly state her views on stare decisis in the Supreme Court. She has …

The Limits Of Reading Law In The Affordable Care Act Cases, Kevin C. Walsh

Law Faculty Publications

One of the most highly lauded legacies of Justice Scalia's decades-long tenure on the Supreme Court was his leadership of a movement to tether statutory interpretation more closely to statutory text. His dissents in the Affordable Care Act cases- National Federation of Independent Business v. Sebelius and King v. Burwell- demonstrate both the nature and the limits of his success in that effort.

These were two legal challenges, one constitutional and the other statutory, that threatened to bring down President Obama's signature legislative achievement, the Patient Protection and Affordable Care Act. Both times the Court swerved away from a direct …

Measuring A Civil-Discovery Sanction For Failure To Turn Over Requested Material: Goodyear Tire V. Haeger (15-1406), Doug Rendleman

Scholarly Articles

A sanction that is unrelated to misconduct is criminal and requires criminal instead of civil procedure. In a product liability lawsuit, the respondent, Goodyear, failed to turn over important tests before the parties settled. The petitioners, the Haegers—a couple who alleged Goodyear’s tires caused injuries—sought approval of a sanction based on their attorney fees. Complex and technical civil procedural rules and statutes, contempt, and the court’s inherent power will govern the Supreme Court’s decision. The issue before the Court is the specificity of the causal link between Goodyear’s misconduct and the amount of the civil sanction.

Leidos And The Roberts Court's Improvident Securities Law Docket, Matthew C. Turk, Karen E. Woody

Scholarly Articles

For its October 2017 term, the U.S. Supreme Court took up a noteworthy securities law case, Leidos, Inc. v. Indiana Public Retirement System. The legal question presented in Leidos was whether a failure to comply with a regulation issued by the Securities and Exchange Commission (SEC), Item 303 of Regulation S-K (Item 303), can be grounds for a securities fraud claim pursuant to Rule 10b-5 and the related Section 10(b) of the 1934 Securities Exchange Act. Leidos teed up a significant set of issues because Item 303 concerns one of the more controversial corporate disclosures mandated by the SEC—an …

Creditor’S Failure To File A Proof Of Claim Is Inexcusable Where Potential Danger Of Prejudice To Debtor Exists, Meghan Lombardo

Bankruptcy Research Library

(Excerpt)

The Federal Rules of Bankruptcy Procedure provide that when an act is required … to be done at or within a specified period … the court for cause shown may at any time in its discretion… on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. Rule 9006 grants a pardon for late filings that were caused by neglect. The Supreme Court has defined neglect as “‘giv[ing] little attention or respect’ to a matter or… ‘to leave undone or unattended to especially …