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Articles 1 - 30 of 222
Full-Text Articles in Law
The Limits Of Executive Power, Robert J. Reinstein
The Limits Of Executive Power, Robert J. Reinstein
American University Law Review
Justice Jackson’s concurring opinion in The Steel Seizure Case has taken on iconic status among legal scholars and had been adopted by the Supreme Court as the governing framework for evaluating presidential power. But Jackson’s principles are conclusory, do not rest on any historical foundation, and raise as many questions as they answer. He fails to examine, much less justify, the existence or scope of implied presidential powers, nor does he meaningfully explain the extent to which those powers are subject to congressional regulation and override. I apply novel originalist methodologies to answer those unexamined questions, with important consequences to …
Turning The Faucet Back On: The Future Of Mccain-Feingold's Soft-Money Ban After Davis V. Federal Election Commission, Kevin J. Madden
Turning The Faucet Back On: The Future Of Mccain-Feingold's Soft-Money Ban After Davis V. Federal Election Commission, Kevin J. Madden
American University Law Review
No abstract provided.
Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson
Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson
University of Michigan Journal of Law Reform
Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low. Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost recovery. In a number of …
Avoiding Another Eldorado: Balancing Parental Liberty And The Risk Of Error With Governmental Interest In The Well-Being Of Children In Complex Cases Of Child Removal, Andrew T. Erwin
William & Mary Law Review
No abstract provided.
The Fourth Amendment, The Exclusionary Rule, And The Roberts Court: Normative And Empirical Dimensions Of The Over-Deterrence Hypothesis, Donald Dripps
Chicago-Kent Law Review
This essay engages in the risky business of predicting future Supreme Court developments. In the first part, I analyze the evidence suggesting that the Roberts Court might abolish the exclusionary rule. The critique of exclusion in Hudson v. Michigan is both less and more probative than appears at first blush. Part II turns to some less obvious evidence pointing in the direction of retaining the exclusionary rule. First, abolition of the exclusionary rule is inconsistent with the Hudson majority's apparent content with prevailing police behavior. Second, abolition of the exclusionary rule would curtail the power of the Supreme Court. Part …
Replacing The Exclusionary Rule: Fourth Amendment Violations As Direct Criminal Contempt, Ronald J. Rychlak
Replacing The Exclusionary Rule: Fourth Amendment Violations As Direct Criminal Contempt, Ronald J. Rychlak
Chicago-Kent Law Review
The exclusionary rule, which bars from admission evidence obtained in violation of the Fourth Amendment's prohibition of unreasonable searches and seizures, is a bedrock of American law. It is highly controversial, but there seems to be no equally effective way to protect citizens' rights. This paper proposes that an admissibility standard be adopted that is in keeping with virtually every jurisdiction around the world other than the United States. Thus, before ruling evidence inadmissible, the court would consider the level of the constitutional violation, the seriousness of the crime, whether the violation casts substantial doubt on the reliability of the …
The Irrelevancy Of The Fourth Amendment In The Roberts Court, Thomas K. Clancy
The Irrelevancy Of The Fourth Amendment In The Roberts Court, Thomas K. Clancy
Chicago-Kent Law Review
Since John Roberts Jr. became Chief Justice of the Supreme Court, there has been a measurable decline in the number of cases addressing Fourth Amendment questions. This article examines the reasons for that decline and predicts the substantial elimination of Fourth Amendment litigation in the Roberts Court. The prediction is based on several premises, including the lack of interest of the Justices on the Court concerning search and seizures principles and two significant recent cases, Pearson v. Callahan and United States v. Herring, which presage a significant decline in the number of lower court cases addressing the merits of …
Mapp V. Ohio'S Unsung Hero: The Suppression Hearing As Morality Play, Scott E. Sundby
Mapp V. Ohio'S Unsung Hero: The Suppression Hearing As Morality Play, Scott E. Sundby
Chicago-Kent Law Review
The exclusionary rule is back under the judicial magnifying glass. Recent opinions, most notably by Justice Scalia, have sparked speculation that the Roberts Court is inclined to overrule Mapp v. Ohio and send Fourth Amendment disputes back to the realm of civil suits and police disciplinary actions. As the Court's rulings have made clear, any reevaluation of the exclusionary rule's future will be conducted under the now familiar rubric of whether the rule's "benefit" of deterring police misbehavior outweighs the "cost" of lost evidence and convictions.
This essay argues that if any such reevaluation does occur, the Court must take …
Fourth Amendment Federalism And The Silencing Of The American Poor, Andrew E. Taslitz
Fourth Amendment Federalism And The Silencing Of The American Poor, Andrew E. Taslitz
Chicago-Kent Law Review
In Virginia v. Moore, police officers searched Moore incident to an arrest for a minor traffic infraction for which Virginia statutory law in fact prohibited arrest. The officers found cocaine on Moore's person, arresting him for that crime too. The United States Supreme Court ultimately found that the arrest for the traffic infraction and the subsequent search were valid under the federal Constitution's Fourth Amendment. Central to the Court's reasoning was its insistence that the state statute was irrelevant. Any contrary conclusion, explained the Court, would wrongly make the Fourth Amendment's meaning vary from place to place. Professor Taslitz …
Melendez-Diaz And The Right To Confrontation, Craig M. Bradley
Melendez-Diaz And The Right To Confrontation, Craig M. Bradley
Chicago-Kent Law Review
In Crawford v. Washington, the Supreme Court overruled Ohio v. Roberts and adopted new law concerning the use of hearsay testimony at criminal trials. This was based on the Sixth Amendment's command that "In all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him .. " On its face this provision seems to say that the accused has the right to cross-examine anybody who testifies for the prosecution at trial, whether as a live witness or through hearsay. The Supreme Court acknowledged much of this in Crawford, but …
Free Speech & Tainted Justice: Restoring The Public's Confidence In The Judiciary In The Wake Of Republican Party Of Minnesota V. White, Gregory W. Jones
Free Speech & Tainted Justice: Restoring The Public's Confidence In The Judiciary In The Wake Of Republican Party Of Minnesota V. White, Gregory W. Jones
Chicago-Kent Law Review
The United States Supreme Court's 2002 decision in Republican Party of Minnesota v. White was the first shot fired in an ongoing battle over judicial campaign ethics. The White decision invalidated a Minnesota Canon of Judicial Conduct prohibiting judicial candidates from announcing their views on disputed legal or political topics. Subsequent to White, numerous states have faced challenges to their judicial canons of conduct by groups advocating for an increased breadth of permissible speech in judicial campaigns. While White and its progeny have safeguarded the first amendment rights of judicial candidates, significant concerns have been raised regarding how best to …
Separating Church And State: Transfers Of Government Land As Cures For Establishment Clause Violations, Paul Forster
Separating Church And State: Transfers Of Government Land As Cures For Establishment Clause Violations, Paul Forster
Chicago-Kent Law Review
The note examines one of the issues currently before the Supreme Court in Salazar v. Buono, the case concerning a Latin cross war memorial in the Mojave desert. The issue is whether the government may, by transferring land to private parties, cure Establishment Clause violations caused by permanent displays that contain religious imagery. The article surveys the Court's Establishment Clause jurisprudence as it applies to permanent displays, discussing the sometimes-used and sometimes-ignored Lemon-endorsement standard and the potential shift to a coercion standard. It concludes by arguing that even under the Lemon-endorsement standard, courts should often allow the …
Fair Housing And Roommates: Contesting A Presumption Of Constitutionality, Brooke Wright
Fair Housing And Roommates: Contesting A Presumption Of Constitutionality, Brooke Wright
BYU Law Review
No abstract provided.
Making The Case: Did The Government's Response To Hurricane Katrina Violate The Equal Protection Clause., Michael Kogut
Making The Case: Did The Government's Response To Hurricane Katrina Violate The Equal Protection Clause., Michael Kogut
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract Forthcoming.
The Constitutional Canon As Argumentative Metonymy, Ian Bartrum
The Constitutional Canon As Argumentative Metonymy, Ian Bartrum
William & Mary Bill of Rights Journal
No abstract provided.
A Promise The Nation Cannot Keep: What Prevents The Application Of The Thirteenth Amendment In Prison?, Raja Raghunath
A Promise The Nation Cannot Keep: What Prevents The Application Of The Thirteenth Amendment In Prison?, Raja Raghunath
William & Mary Bill of Rights Journal
The walls of the prison are not solely physical. The doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances, obstructs the effective scrutiny of modern practices of punishment. Since its ratification, the Thirteenth Amendment—which prohibits slavery or involuntary servitude anywhere within the United States or its jurisdiction, except where imposed “as a punishment for crime whereof the party shall have been duly convicted”1—has been seen by courts as one brick in this wall. This Article makes the novel argument that, properly read, the amendment should function instead …
Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How "Attrition Or Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House, Michael Anthony Lawrence
Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How "Attrition Or Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House, Michael Anthony Lawrence
William & Mary Bill of Rights Journal
No abstract provided.
The Bapcpa, The Gag Rule, And The First Amendment: A Proposal For Alignment Through Interpretive And Analytical Change, Cullen Ann Drescher
The Bapcpa, The Gag Rule, And The First Amendment: A Proposal For Alignment Through Interpretive And Analytical Change, Cullen Ann Drescher
William & Mary Bill of Rights Journal
No abstract provided.
Talking Originalism , Andrew B. Coan
Ways To Change: A Reevaluation Of Article V Campaigns And Legislative Constitutionalism , Mary Ziegler
Ways To Change: A Reevaluation Of Article V Campaigns And Legislative Constitutionalism , Mary Ziegler
BYU Law Review
No abstract provided.
Randomization And Adjudication, Adam M. Samaha
Randomization And Adjudication, Adam M. Samaha
William & Mary Law Review
Flipping a coin to decide a case is among the most serious forms of judicial misconduct. Yet judges react quite differently to other types of lotteries. Judges tend to tolerate or encourage deliberately random decisions in nonjudicial settings ranging from military drafts to experimental welfare requirements. Equally striking, most adjudicators now embrace randomization within their own institutions: they commonly use lotteries to assign incoming cases to each other. This practice creates a remarkable tension. Because adjudicators vary in competence and ideology, randomizing their case assignments will effectively randomize outcomes in a subset of merits decisions. We might then ask whether …
Rethinking Women And The Constitution: An Historical Argument For Recognizing Constitutional Flexibility With Regards To Women In The New Republic, Samantha Ricci
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne
The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne
William & Mary Bill of Rights Journal
No abstract provided.
Constitutions, International Law, And The Settlement Function Of Law: A Schema For Further Reflection, Larry Alexander
Constitutions, International Law, And The Settlement Function Of Law: A Schema For Further Reflection, Larry Alexander
San Diego International Law Journal
Imagine a community living in a defined geographical area. Its members generally believe that their actions should be guided by moral norms, and they generally comply with those norms as they understand them. And, from our external vantage point, we believe that they are indeed subject to moral norms and should comply with them, both in dealing with each other and with those outside their community....
De-Cloaking Torture: Boumediene And The Military Commissions Act, Alan W. Clarke
De-Cloaking Torture: Boumediene And The Military Commissions Act, Alan W. Clarke
San Diego International Law Journal
The Military Commissions Act of 2006 (MCA) marked the high tide and endgame for hiding torture. It's unraveling did more to uncover the Bush administration's secret interrogation practices than did the political change in Washington. International and domestic backlash against the government's embrace of harsh interrogation techniques, frequently rising to the level of torture, also played a role. However, the Supreme Court's decisions ending in Boumediene v. Bush played the decisive role. Boumediene, and the Supreme Court decisions that led up to it, made inevitable that which politics had left contingent and reversible. It also provided legal and political cover.
Improper Joinder: Confronting Plaintiffs' Attempts To Destroy Federal Subject Matter Jurisdiction., Paul Rosenthal
Improper Joinder: Confronting Plaintiffs' Attempts To Destroy Federal Subject Matter Jurisdiction., Paul Rosenthal
American University Law Review
No abstract provided.
Deed Of Mistrust?: The Use Of Land Transfers To Evade The Establishment Clause, David C. Peet
Deed Of Mistrust?: The Use Of Land Transfers To Evade The Establishment Clause, David C. Peet
American University Law Review
No abstract provided.
Should The Courts Save Taxpayer Standing? - Interpreting Hein V. Freedom From Religion Foundation Narrowly Through The Lens Of Judicial-Branch Spending, Akiva Shapiro
The Journal of Appellate Practice and Process
No abstract provided.
"Knock And Talk" And The Fourth Amendment, Craig M. Bradley
"Knock And Talk" And The Fourth Amendment, Craig M. Bradley
Indiana Law Journal
No abstract provided.
Federalism, Forum Shopping, And The Foreign Injury Paradox, Elizabeth T. Lear
Federalism, Forum Shopping, And The Foreign Injury Paradox, Elizabeth T. Lear
William & Mary Law Review
This Article explores the contours of state regulatory power in the foreign injury context. The Supreme Court has long declined to question forum choice in domestic cases, apparently concluding that any other response would be inconsistent with our federalism. But move the injury offshore and the judicial deference to state regulatory supremacy evaporates. Federal judges subject forum choice in transnational tort actions to exacting scrutiny, routinely dismissing such claims on forum non conveniens grounds with no examination of the state interests at stake. This Article first considers whether the offshore nature of a foreign injury diminishes or even extinguishes traditional …