Law Commons^™

Ohio's Modern Courts Amendment Must Be Amended: Why And How, Richard S. Walinski, Mark D. Wagoner Jr.

Cleveland State Law Review

A 1968 amendment to the Ohio Constitution granted the Supreme Court of Ohio the authority to promulgate “rules governing practice and procedure” for Ohio courts. The amendment also provided that “[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect” and that no rule may “abridge, enlarge, or modify any substantive right.”

Although the amendment was explicit about automatic repeal of existing laws, it says nothing about whether the General Assembly may legislate on a procedural matter after a court rule takes effect. That silence has caused enduring confusion. …

Stuck In Ohio's Legal Limbo, How Many Mistrials Are Too Many Mistrials?: Exploring New Factors That Help A Trial Judge In Ohio Know Whether To Exercise Her Authority To Dismiss An Indictment With Prejudice, Especially Following Repeated Hung Juries, Samantha M. Cira

Cleveland State Law Review

Multiple mistrials following validly-prosecuted trials are becoming an increasingly harsh reality in today’s criminal justice system. Currently, the Ohio Supreme Court has not provided any guidelines to help its trial judges know when to make the crucial decision to dismiss an indictment with prejudice following a string of properly-declared mistrials, especially due to repeated hung juries. Despite multiple mistrials that continue to result in no conviction, criminal defendants often languish behind bars, suffering detrimental psychological harm and a loss of personal freedom as they remain in “legal limbo” waiting to retry their case. Furthermore, continuously retrying defendants cuts against fundamental …

Dualism Of Judicial Review In Indonesia: Problems And Solutions, Hamid A. Chalid

Indonesia Law Review

Through the momentum of the third amendment of the 1945 Constitution of the Republic of Indonesia which was passed in 2001, Indonesia has officially adopted a dualistic judicial review system. Under such system, the authority to conduct judicial review is divided/spread to the two judicial organs, each with its own scope of review; namely, the Supreme Court/Mahkamah Agung reviews regulations below the level of Law (Undangundang), while the Constitutional Court/Mahkamah Konstitusi reviews the same against the Constitution (constitutional review). Seen from the theoretical and practical perspective adhered to by states which adopt the formation of the Constitutional Court (centered judicial …

Fungsi Representasi Dewan Perwakilan Daerah Republik Imdonesia Sebagai Lembaga Perwakilan Daerah, Ryan Muthiara Wasti

Jurnal Hukum & Pembangunan

In the composition of the Indonesian constitution, DPD becomes a representative institution that has the duty to accommodate regional interests in political decisions. Its very important existence was not accompanied by the spirit of strict regulation in the legislation in Indonesia. This can be seen from the position and function of DPD which is weaker than the DPR. Law Number 17 of 2014 on the Composition, Status and Functions of the MPR, DPR, DPD and DPRD, which are the latest changes to the previous Susduk law, have not been able to address the need for more significant arrangements on the …

Kedudukan Dan Kewenangan Komisi Yudisial Republik Indonesia Dan Perbandingannya Dengan Komisi Yudisial Di Beberapa Negara Eropa, Suparto -

Jurnal Hukum & Pembangunan

Reformation has given birth to the amendment on 1945 Constitution. One of the results of the third amendment of the constitution was the birth of Judicial Commission. The standing of Judicial Commission is very important, so structurally it is being positioned at the same level with the Supreme Court and the Constitutional Court. Yet, the Judicial Commission role is as an auxiliary body to the judicial power institutions. It only deals with the matters of honor, dignity, and behavior of the judges, not the judiciary institutions. Aside from that, Judicial Commission is not involved in the organization, human resources, administration, …

Guarantees Of Human Rights In The Constution Of Uzbekistan, N. Bekmirzayev

Review of law sciences

this article fully analyzed the classification of human rights are divided into individual, civil, political, economic and social rights, safeguards mechanisms in the Constitution and laws of the Republic of Uzbekistan, as well as their compliance and protection through national mechanisms.

Constitutional Legal Bases Of Formation And Functioning Of System "E-Government" In Uzbekistan, S. Sadikov

Review of law sciences

the article is devoted to the topical problem of IKT Constitution legal development of legislation by formation and activity of e-government. The authors considers acceptance of the Law about e-government has become a progressive step in improving the legislation of the country. The article review the features of the new Law about e-government.

Herr V. U.S. Forest Service, Peter B. Taylor

Public Land & Resources Law Review

In Herr v. U. S. Forest Service, the Sixth Circuit ruled on whether the Forest Service could infringe on pre-existing private property rights held adjacent to a designated Wilderness Area. The Herrs purchased lakefront property adjacent to the Sylvania Wilderness in the Upper Peninsula of Michigan with the intention of using their littoral rights for recreational boating. The Sylvania Wilderness was created under the Michigan Wilderness Act in 1987, but the Act observed valid existing rights. The court found that the Herrs’ littoral rights were recognizable “valid existing rights.” Therefore, the Forest Service’s restriction of those rights was illegal.

Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson

William & Mary Bill of Rights Journal

We finally have a federal ‘test case.’ In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age. The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher. This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious.

As for ambition, the Court …

Feeding The Machine: Policing, Crime Data, & Algorithms, Elizabeth E. Joh

William & Mary Bill of Rights Journal

No abstract provided.

The Unreasonable Rise Of Reasonable Suspicion: Terrorist Watchlists And Terry V. Ohio, Jeffrey Kahn

William & Mary Bill of Rights Journal

Terry v. Ohio’s “reasonable suspicion” test was created in the context of domestic law enforcement, but it did not remain there. This Essay examines the effect of transplanting this test into a new context: the world of terrorist watchlists. In this new context, reasonable suspicion is the standard used to authorize the infringement on liberty that often results from being watchlisted. But nothing else from the case that created that standard remains the same. The government official changes from a local police officer to an anonymous member of the intelligence community. The purpose changes from crime prevention to counterterrorism. …

Private Actors, Corporate Data And National Security: What Assistance Do Tech Companies Owe Law Enforcement?, Caren Morrison

William & Mary Bill of Rights Journal

When the government investigates a crime, do citizens have a duty to assist? This question was raised in the struggle between Apple and the FBI over whether the agency could compel Apple to defeat its own password protections on the iPhone of one of the San Bernardino shooters. That case was voluntarily dismissed as moot when the government found a way of accessing the data on the phone, but the issue remains unresolved.

Because of advances in technology, software providers and device makers have been able to develop almost impenetrable protection for their customers’ information, effectively locking law enforcement out …

The Fourth Amendment Disclosure Doctrines, Monu Bedi

William & Mary Bill of Rights Journal

The third party and public disclosure doctrines (together the “disclosure doctrines”) are long-standing hurdles to Fourth Amendment protection. These doctrines have become increasingly relevant to assessing the government’s use of recent technologies such as data mining, drone surveillance, and cell site location data. It is surprising then that both the Supreme Court and scholars, at times, have associated them together as expressing one principle. It turns out that each relies on unique foundational triggers and does not stand or fall with the other. This Article tackles this issue and provides a comprehensive topology for analyzing the respective contours of each …

Protecting The Silence Of Speech: Academic Safe Spaces, The Free Speech Critique, And The Solution Of Free Association, Trevor N. Ward

William & Mary Bill of Rights Journal

No abstract provided.

Horizontal Cybersurveillance Through Sentiment Analysis, Margaret Hu

William & Mary Bill of Rights Journal

This Essay describes emerging big data technologies that facilitate horizontal cybersurveillance. Horizontal cybersurveillance makes possible what has been termed as “sentiment analysis.” Sentiment analysis can be described as opinion mining and social movement forecasting. Through sentiment analysis, mass cybersurveillance technologies can be deployed to detect potential terrorism and state conflict, predict protest and civil unrest, and gauge the mood of populations and subpopulations. Horizontal cybersurveillance through sentiment analysis has the likely result of chilling expressive and associational freedoms, while at the same time risking mass data seizures and searches. These programs, therefore, must be assessed as adversely impacting a combination …

Notice And Standing In The Fourth Amendment: Searches Of Personal Data, Jennifer Daskal

William & Mary Bill of Rights Journal

In at least two recent cases, courts have rejected service providers’ capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular third-party litigant could not. In the situations presented by the recent cases, by …

Postmodern Social Control: Dividuals And Surveillance, Ernest M. Oleksy

The Downtown Review

As a society's foundational philosophy changes, so, too, will its forms of social control. By using the works of thinkers like Deleuze and Foucault as pivot points, the dynamic nature of social interactions and the agents to mediate those actions shall be investigated. This article includes findings from archival analysis written in a journalistic prose for simplicity of consumption.

Inseparable: Perspective Of Senator Daniel Webster, Ernest M. Oleksy

The Downtown Review

Considering the hypersensitivity that their nation has towards race relations, it is often ineffable to contemporary Americans as to how anyone could have argued against abolition in the 19th century. However, by taking the perspective of Senator Daniel Webster speaking to an audience of disunionist-abolitionists, proslaveryites, and various shades of moderates, numerous points of contention will be brought to light as to why chattel slavery persisted so long in the U.S. Focal points of dialogue will include the Narrative of Frederick Douglass, the "positive good" claims of Senator John C. Calhoun, the disunionism of William Lloyd Garrison, and the defense …

Promesa And The Bankruptcy Clause: A Reminder About Uniformity, Stephen J. Lubben

Brooklyn Journal of Corporate, Financial & Commercial Law

The Bankruptcy Clause—Article I, Section 8, Clause 4—provides that “The Congress shall have power . . . [t]o establish . . . uniform Laws on the subject of Bankruptcies throughout the United States . . . .”[1] But Congress has just enacted a bankruptcy law that applies to a single American territory. In early May 2017, Puerto Rico and one affiliated entity filed a petition under this new law. In late May, the Employees Retirement System commenced a case, along with the Puerto Rico Highway and Transportation Authority. Other Puerto Rican sub-entities are expected to follow. I use this short …

Decision-Making And The Shaky Property Foundations Of Municipal Bankruptcy Law, Juliet M. Moringiello

Brooklyn Journal of Corporate, Financial & Commercial Law

Municipal bankruptcies are unpredictable. There are several reasons for this statement— municipal bankruptcies are rare, involvement of the state itself in the process varies according to the governing state law, and chapter 9, the Bankruptcy Code chapter governing the municipal bankruptcy process, has many gaps. Congress constructed the modern chapter 9 on a foundation of corporate bankruptcy law, a foundation whose roots—corporate finance—are significantly different from the rules governing municipal finance. In this Article, Professor Moringiello aims a spotlight on the property roots of private bankruptcy law and compares them to the promissory and statutory roots of municipal finance law …

Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In this essay Professor Janger considers the role of bankruptcy judges in Chapter 9 cases in light of the scholarly literature on public law judging. He explores the extent to which bankruptcy judges engaged in the fiscal restructuring of a municipality use tools, and face constraints, similar to those utilized by federal district court judges in structural reform cases, where constitutional norms are at issue.

The “Right” Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana

Brooklyn Journal of International Law

Should there be a constitutional right to environmental protection? Arguments for and against are aplenty, but there is no consensus on this issue. Drawing on the experience within the U.S. and Indian Constitutions, this article posits that the right to environmental protection has normative and practical significance, because a constitutional right attaches to an individual and, hence, can protect an individual from environmental harms, whereas environmental laws, that focus primarily on reducing adverse environmental impact on a general population, may not. It further argues that, to be effective, three constitutionally-embedded rights that are central to preserving the right to environmental …

The Right Balance: Qualified Immunity And Section 1983, Jana Minich

Channels: Where Disciplines Meet

This paper explores qualified immunity jurisprudence in the context of Section 1983 lawsuits against police officers. Following an overview of the history behind this jurisprudence, this research looks into the current problems with the application of qualified immunity: lack of guidance for lower courts, a need for constitutional rights articulation, and a divergence from notice-based standard for particularity. This study suggests guiding the trajectory of case law toward solutions with foundations already present in precedent rather than overhauling the system of qualified immunity.

Revisiting The Voluntariness Of Confessions After State V. Sawyer, Michael Theodore Bigos

Maine Law Review

Every individual in our society needs confidence in our criminal justice system to know that one cannot be convicted of a crime unless a fact finder is convinced of every necessary element with the highest assurances of the truth. The process of establishing facts in a criminal trial is highly dependent upon how decision-making power is allocated between the judge and the jury and upon the fairness of that allocation. This Note discusses the areas of confession law and burdens of proof in the context of how federal criminal constitutional doctrines that affect the fact-finding process offer less than clear …

Rideout V. Riendeau: Grandparent Visitation In Maine After Troxel, Theodore A. Small

Maine Law Review

Rideout v. Riendeau presented a case in which two grandparents, Rose and Chesley Rideout, sought visitation of their three grandchildren. Though the Rideouts had served as the childrens' “primary caregivers and custodians” for significant periods of time, the childrens' parents, Heaven-Marie Riendeau, who was the Rideouts' daughter, and Jeffrey Riendeau, ended all contact between the children and the Rideouts due to a strained relationship between the Rideouts and the Riendeaus. The Rideouts filed a complaint pursuant to Maine's Grandparents Visitation Act (the Act), which allows grandparents to bring a petition for visitation when there is a “sufficient existing relationship between …

With Malice Toward One: Malice And The Substantive Law In "Class Of One" Equal Protection Claims In The Wake Of Village Of Willowbrook V. Olech, Shaun M. Gehan

Maine Law Review

It may be time to relearn the fundamentals of the Equal Protection Clause of the Fourteenth Amendment. According to the Supreme Court, in a brief and unassuming per curiam opinion in Village of Willowbrook v. Olech, violations of equal protection do not of necessity rely on class-based discriminations. Federal, state, and local governments can violate the equal protection rights of an individual qua individual; a so-called “class of one.” The ramifications of this decision are just now becoming clear, and it has already led to some surprising results in areas of statutory law thought to be well settled. The only …

Caring For Workers, Martha T. Mccluskey

Maine Law Review

This essay examines the question of conflict between market work and family care from the angle of family caretaking labor for workers rather than for dependents. Feminist legal scholars and activists have been concerned for generations about the effect of women's unpaid caretaking work on women's participation and success in the wage labor market. Better public support for this gendered family care work is crucial to many leading visions of feminist legal and economic change. Recent welfare reforms, however, have increased the extent to which public policy treats caretaking instead as a personal responsibility (or a sign of personal irresponsibility) …

Caretaking And The Contradictions Of Contemporary Policy, Michael Selmi, Naomi Cahn

Maine Law Review

Contemporary social policy relating to women's employment remains strikingly ambivalent. Those in favor of traditional family structures, a position that is generally associated with conservative political agendas, have often expressed a preference for a family model that emphasizes the woman's role as a homemaker, or to use the more recent term, a caretaker. At the same time, as the 1996 Welfare Reform Act demonstrates, if the choice is between providing financial support that would enable lower-income women to stay in the home and forcing those women into the labor market, the conservative agenda will opt for the latter. More recently, …

Telecommuting: The Escher Stairway Of Work/Family Conflict, Michelle A. Travis

Maine Law Review

According to Working Mother magazine, telecommuting is a “wonderful arrangement for working moms.” Advertisements for telecommuting jobs and related technologies show us pictures of these happy telecommuting moms, who are conducting important business on the telephone or typing busily at their computers, as their smiling toddlers play quietly by their sides or sit contentedly in their laps. Some employers have offered this wonderful experience in direct response to concerns raised by “women's issues” committees. That was probably just what Jack Nilles had in mind when he first coined the term “telecommuting” in the 1970s and described it as a way …

Job Segregation, Gender Blindness, And Employee Agency, Tracy E. Higgins

Maine Law Review

Almost forty years after the enactment of Title VII, women's struggle for equality in the workplace continues. Although Title VII was intended to “break[] down old patterns of segregation and hierarchy,” the American workplace remains largely gender-segregated. Indeed, more than one-third of all women workers are employed in occupations in which the percentage of women exceeds 80%. Even in disciplines in which women have made gains, top status (and top paying) jobs remain male-dominated while the lower status jobs are filled by women. This pattern of gender segregation, in turn, accounts for a substantial part of the persistent wage gap …