Open Access. Powered by Scholars. Published by Universities.®
- Discipline
Articles 1 - 8 of 8
Full-Text Articles in Law
'Great Variety Of Relevant Conditions, Political, Social And Economic': The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright
'Great Variety Of Relevant Conditions, Political, Social And Economic': The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright
UF Law Faculty Publications
Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing …
The Right To Silence V. The Fifth Amendment, Tracey Maclin
The Right To Silence V. The Fifth Amendment, Tracey Maclin
UF Law Faculty Publications
This paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent” that …
Government Analysis Of Shed Dna Is A Search Under The Fourth Amendment, Tracey Maclin
Government Analysis Of Shed Dna Is A Search Under The Fourth Amendment, Tracey Maclin
UF Law Faculty Publications
This article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA. Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection. First, the collection of the biological material which contains a person’s DNA might be considered a search under the amendment. Courts, however, have uniformly rejected this argument. For example, when …
School Surveillance And The Fourth Amendment, Jason P. Nance
School Surveillance And The Fourth Amendment, Jason P. Nance
UF Law Faculty Publications
In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …
Framing The Fourth, Tracey Maclin, Julia Mirabella
Framing The Fourth, Tracey Maclin, Julia Mirabella
UF Law Faculty Publications
Book Review of "The Fourth Amendment: Origins and Original Meaning", 602-1791. By William J. Cuddihy. Oxford and New York: Oxford Press. 2009. Pp. lxviii, 940. $165. History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law. Cuddihy’s historical analysis is unprecedented. As Justice …
Nobody's Fools: The Rational Audience As First Amendment Ideal, Lyrissa Barnett Lidsky
Nobody's Fools: The Rational Audience As First Amendment Ideal, Lyrissa Barnett Lidsky
UF Law Faculty Publications
Assumptions about audiences shape the outcomes of First Amendment cases. Yet the Supreme Court rarely specifies what its assumptions about audiences are, much less attempts to justify them. Drawing on literary theory, this Article identifies and defends two critical assumptions that emerge from First Amendment cases involving so-called core speech. The first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less. These assumptions, which I refer to collectively as the rational audience model, lie at the heart of the marketplace of ideas …
Racial Exhaustion, Darren Lenard Hutchinson
Racial Exhaustion, Darren Lenard Hutchinson
UF Law Faculty Publications
Contemporary political and legal discourse on questions of race unveils a tremendous perceptual gap among persons of color and whites. Opinion polls consistently demonstrate that persons of color commonly view race and racial discrimination as important factors shaping their opportunities for economic and social advancement. Whites, on the other hand, often discount race as a pertinent factor in contemporary United States society. Consequently, polling data show that whites typically reject racial explanations for acute disparities in important socio-economic indicators, such as education, criminal justice, employment, wealth, and health care. Echoing this public sentiment, social movement actors, politicians, and the Supreme …
"The Constitution Follows The Flag...But Doesn't Quite Catch Up With It": The Story Of Downes V. Bidwell, Pedro A. Malavet
"The Constitution Follows The Flag...But Doesn't Quite Catch Up With It": The Story Of Downes V. Bidwell, Pedro A. Malavet
UF Law Faculty Publications
Some may consider a 1901 case to be ancient history, but Downes v. Bidwell and its progeny still govern all of these regions. This chapter will explore the Insular Cases as a way to understand the role of race in articulating the relationship between American territorial expansion and American citizenship-between American empire and American democracy. The chapter begins by historicizing the Downes opinion. My aim here is threefold: (1) to provide a brief description of the effects of Spanish colonial rule on Puerto Rico; (2) to set forth the circumstances leading up to the Spanish American War; and (3) to …