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Full-Text Articles in Law

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel Apr 2104

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel

David B Kopel

The Second Amendment protects the operation of businesses which provide Second Amendment services, including gun stores. Although lower federal courts have split on the issue, the right of firearms commerce is demonstrated by the original history of the Second Amendment, confirmed by the Supreme Court in District of Columbia v. Heller, and consistent with the Court's precedents on other individual rights.


Exploring A More Independent Freedom Of Peaceful Assembly In Canada, Basil S. Alexander Feb 2018

Exploring A More Independent Freedom Of Peaceful Assembly In Canada, Basil S. Alexander

Western Journal of Legal Studies

There has been significant progress regarding the law on public demonstrations since the enactment of the Canadian Charter of Rights and Freedoms. However, the freedom of peaceful assembly, one of the four fundamental freedoms protected by section 2 of the Charter, is the least judicially explored freedom. Rather than undertake a free-standing freedom of peaceful assembly analysis, Canadian courts tend to subsume the analysis into freedom of expression. As illustrated by the increasingly frequent occurrence of demonstrations today, freedom of peaceful assembly is an emerging and ongoing issue in constitutional law. Accordingly, it is more crucial than ever that peaceful ...


Supreme Court Review: Legalistic Argle-Bargle, Molly Mcburney, Kristen Barnes, Bernadette Genetin, Wilson Huhn, William Jordan, Marge Koosed, Rich Lavoie, Brant Lee, Elizabeth Reilly, Bill Rich, Kalyani Robbins, Jeff Samuels, Tracy Thomas, Katharine Van Tassel Feb 2018

Supreme Court Review: Legalistic Argle-Bargle, Molly Mcburney, Kristen Barnes, Bernadette Genetin, Wilson Huhn, William Jordan, Marge Koosed, Rich Lavoie, Brant Lee, Elizabeth Reilly, Bill Rich, Kalyani Robbins, Jeff Samuels, Tracy Thomas, Katharine Van Tassel

Katharine Van Tassel

No abstract provided.


Justiciability, Access To Justice And The Development Of Constitutional Law In Canada, Lorne Sossin, Gerard J. Kennedy Feb 2018

Justiciability, Access To Justice And The Development Of Constitutional Law In Canada, Lorne Sossin, Gerard J. Kennedy

Lorne Sossin

Concentrating on Canadian experience, specifically litigation under the Canadian Charter of Rights and Freedoms (the ‘Charter’), this article seeks to reconcile the access to justice benefits of summary procedures with the government litigant’s duty to act in the public interest (or as a ‘model litigant’) and uphold the rule of law. Though acknowledging the benefits that can result from the use of summary procedures to end litigation, the authors observe that compliance with strict requirements in procedural law are frequently dispensed with in the Charter context. In fact, summary procedures can have a devastating effect on the development of ...


Economic Protectionism: Irrationally Constitutional, Joshua Park Jan 2018

Economic Protectionism: Irrationally Constitutional, Joshua Park

Pepperdine Law Review

The Constitution is built on the principle that all citizens are created equal. Naturally, we believe that no law should be passed solely for the sake of benefiting one group over another. Yet, governments continue to pass economic regulations that have no purpose other than maintaining wealth within a specific group, and the judiciary continues to uphold such regulations. While the judiciary purports to uphold challenged legislation only if it passes “rational basis review,” the term “review” is a misnomer because the analysis has essentially become automatic deference. Under the judiciary’s modern treatment of the Equal Protection Clause, successfully ...


Congressional Control Of Presidential Pardons, Glenn H. Reynolds Jan 2018

Congressional Control Of Presidential Pardons, Glenn H. Reynolds

Nevada Law Journal Forum

The reach of the presidential pardon power has been much in the news of late (for a variety of reasons). It is well established that the pardon power is plenary; that it can be exercised in advance of formal criminal charges being filed; and that it does not extend to state crimes; but there remain many unsettled (and unsettling) questions. Can a president pardon himself? Can a pardon, though perfectly lawful in itself, constitute obstruction of justice? Can a president use a pardon, issued in advance of criminal activity, to insulate an actor from criminal liability before the criminal act ...


Manuel V. City Of Joliet: Pursuing A Claim Under The Fourth Amendment, Lynda Hercules Charleson Jan 2018

Manuel V. City Of Joliet: Pursuing A Claim Under The Fourth Amendment, Lynda Hercules Charleson

Texas A&M Law Review

In Justice Kagan’s majority opinion in Manuel v. City of Joliet, the Supreme Court held that the Fourth Amendment governs a claim sought under 42 U.S.C.A. § 1983 for unlawful pretrial detention, even after the start of the legal process. Following the “broad consensus among the circuit courts,” the Court overturned the Seventh Circuit’s holding that pretrial detention following the start of the legal process was a claim under the Due Process Clause instead of the Fourth Amendment. This note will argue that the Court’s majority opinion correctly held that the Fourth Amendment governs a ...


Constitutional Conflict And The Development Of Canadian Aboriginal Law, Guy Charlton, Xiang Gao Dec 2017

Constitutional Conflict And The Development Of Canadian Aboriginal Law, Guy Charlton, Xiang Gao

The University of Notre Dame Australia Law Review

This paper argues that aboriginal rights in Canada have been greatly affected by 19 th century governmental and social conflicts within the Canadian colonial state. These conflicts, largely over the ownership of land and regulatory authority between the federal government and the provinces necessarily impacted the First Nations on the ground while affecting how their legal claims were recognized and implemented. In particular they impacted the legal efficacy of treaty rights, the scope of rights recognised by the courts and an expansive legally protected notion of indigenous sovereignty. As a result, the rights now protected under sec. 25 and 35 ...


Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski Oct 2017

Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski

Randy J Kozel

The Supreme Court’s workload and its method for selecting cases have drawn increasing critical scrutiny. Similarly, and separately, recent commentary has focused on the disparate approaches the Court has taken to resolving cases on its (historically small) docket. In this Essay we draw these two lines of inquiry together to argue that the Court’s case selection should align with its approach to constitutional adjudication. In doing so, we discuss four modes of constitutional decisionmaking and then examine the interplay between those modes, the Court’s management of its docket, and its sense of institutional role. The Court, we ...


Government Identity Speech Programs: Understanding And Applying The New Walker Test, Leslie Gielow Jacobs Oct 2017

Government Identity Speech Programs: Understanding And Applying The New Walker Test, Leslie Gielow Jacobs

Leslie Gielow Jacobs

In Walker v. Texas Division, Sons of Confederate Veterans, Inc., the Court extended its previous holding in Pleasant Grove City, Utah v. Summum, that a city’s donated park monuments were government speech, to the privately proposed designs that Texas accepts and stamps onto its specialty license plates. The placement of the program into the new doctrinal category is significant because the selection criteria for government–private speech combinations that produce government speech are “exempt from First Amendment scrutiny.” By contrast, when the government selects private speakers to participate in a private speech forum, its criteria must be reasonable in ...


A Look At The Fourth Amendment Implications Of Drone Surveillance By Law Enforcement Today, Mary Mara Oct 2017

A Look At The Fourth Amendment Implications Of Drone Surveillance By Law Enforcement Today, Mary Mara

ConLawNOW

This paper will examine the current state of drone technology and its increasing prevalence in private and public settings. As police agencies seek to incorporate this new technology into their crime-fighting arsenal, serious Fourth Amendment privacy considerations arise. Although a national debate rages in this country about the impact of modern technology on privacy rights, Congress, the Federal Aviation Authority (FAA), and the Supreme Court have yet to weigh in on the Fourth Amendment implications of warrantless drone surveillance by law enforcement. Furthermore, while some states have attempted to step into the breach by passing legislation which limits the use ...


A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan Oct 2017

A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan

Faculty Publications

There is a problem in our constitutional history: the problem of split Supreme Court decisions invalidating democratically enacted laws. From Dred Scott[1] to Lochner[2] to Roe v. Wade[3] to Citizens United,[4] and even the recent Second Amendment decisions of Heller[5] and McDonald,[6] these patently fallible decisions on controversial political and social issues have divided the nation, politicized the Court, poisoned the Supreme Court nomination process and thwarted the political branches and democratic governance. Requiring Supreme Court unanimity to overturn legislation on constitutional grounds would therefore be morally and politically desirable. Why that is so ...


The Ecology Of Transparency Reloaded, Seth F. Kreimer Sep 2017

The Ecology Of Transparency Reloaded, Seth F. Kreimer

Faculty Scholarship

As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued ...


Paliotta V. State Dep’T Of Corrections, 133 Nev. Adv. Op. 58 (Sept. 14, 2017), Anna Sichting Sep 2017

Paliotta V. State Dep’T Of Corrections, 133 Nev. Adv. Op. 58 (Sept. 14, 2017), Anna Sichting

Nevada Supreme Court Summaries

The Court determined it must consider the sincere religious beliefs of the individual when evaluating claims under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (RLUIPA). It is improper to evaluate those claims under the centrality test, which attempts to determine if the individual’s beliefs are central to a tenant of the religion in question. Once the sincere belief is shown, the courts must then fully examine the remaining considerations under the Free Exercise Clause and the RLUIPA.


The Abraham Lincoln Lecture On Constitutional Law, Steven G. Calabresi Sep 2017

The Abraham Lincoln Lecture On Constitutional Law, Steven G. Calabresi

Northwestern University Law Review

These introductory remarks to the Inaugural Abraham Lincoln Lecture on Constitutional Law were delivered at Northwestern Pritzker School of Law on April 6, 2017.


The Inaugural Abraham Lincoln Lecture On Constitutional Law: Electoral College Reform, Lincoln-Style, Akhil Reed Amar Sep 2017

The Inaugural Abraham Lincoln Lecture On Constitutional Law: Electoral College Reform, Lincoln-Style, Akhil Reed Amar

Northwestern University Law Review

This Inaugural Abraham Lincoln Lecture was delivered at Northwestern Pritzker School of Law on April 6, 2017.


The Unintended Consequences Of California Proposition 47: Reducing Law Enforcement’S Ability To Solve Serious, Violent Crimes, Shelby Kail Aug 2017

The Unintended Consequences Of California Proposition 47: Reducing Law Enforcement’S Ability To Solve Serious, Violent Crimes, Shelby Kail

Pepperdine Law Review

For many years, DNA databases have helped solve countless serious, violent crimes by connecting low-level offenders to unsolved crimes. Because the passage of Proposition 47 reduced several low-level crimes to misdemeanors, which do not qualify for DNA sample collection, Proposition 47 has severely limited law enforcement’s ability to solve serious, violent crimes through California’s DNA database and reliable DNA evidence. This powerful law enforcement tool must be preserved to prevent additional crimes from being committed, to exonerate the innocent, and to provide victims with closure through conviction of their assailants or offenders. Proposition 47’s unintended consequences have ...


Originalism And The Criminal Law: Vindicating Justice Scalia's Jurisprudence - And The Constitution, Adam Lamparello, Charles E. Maclean Jul 2017

Originalism And The Criminal Law: Vindicating Justice Scalia's Jurisprudence - And The Constitution, Adam Lamparello, Charles E. Maclean

Akron Law Review

Justice Scalia was not perfect—no one is—but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective—namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution—that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.” Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden ...


A Diverse Student Body Without Student Bodies?: Online Classrooms And Affirmative Action, Ryan H. Nelson Jul 2017

A Diverse Student Body Without Student Bodies?: Online Classrooms And Affirmative Action, Ryan H. Nelson

Pepperdine Law Review

America’s public universities engage students in myriad classroom environments that range from traditional, entirely-in-person classroom environments to entirely-online, virtual classrooms, with every shade of grey in between. These varied learning environments pose a fascinating question with respect to the ways such universities use affirmative action in admissions. In Grutter v. Bollinger, the United States Supreme Court held that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” Indeed, student body diversity remains one of the few “compelling interests” that the Court has held satisfies the constitutional imperative that the “government ...


Developments In Constitutional Law: The 1994-95 Term, Hester Lessard, Bruce Ryder, David Schneiderman, Margot Young Jul 2017

Developments In Constitutional Law: The 1994-95 Term, Hester Lessard, Bruce Ryder, David Schneiderman, Margot Young

Bruce B. Ryder

This essay explores the apparent triumph of the individual of classical liberalism in Supreme Court decision making. Our analysis examines the particular way in which this political imagery of the individual interacts with judicial assumptions about important social institutions: the family, religion, media, and the state. What is revealed is the judicial adoption of an intricate social and political map in which abstract individualism combines with, and often masks, traditional, conservative images of social order and moral choice.


Ending-Life Decisions: Some Disability Perspectives, Mary Crossley Jul 2017

Ending-Life Decisions: Some Disability Perspectives, Mary Crossley

Georgia State University Law Review

This Essay considers the challenges to end-of-life decision-making that disability poses. I am perhaps an odd choice to offer the disability perspective on this or any topic, as I am able bodied and of sound mind, at least for the moment. For the past thirty years, however, I have puzzled over how people with disabilities experience the health care system in this country and how the health care system experiences people with disabilities.

This essay does two things. First, it briefly describes the nature of and basis for disability concerns about the liberalization of ending life decisions. This account is ...


2016-2017 Georgia State University Law Review Symposium: Exploring The Right To Die In The U.S., Margaret Pabst Battin Jul 2017

2016-2017 Georgia State University Law Review Symposium: Exploring The Right To Die In The U.S., Margaret Pabst Battin

Georgia State University Law Review

This transcript is a reproduction of the Keynote Presentation at the 2016–2017 Georgia State University Law Review Symposium on November 11, 2016. Margaret Battin, is a Distinguished Professor of Philosophy and Adjunct Professor of Internal Medicine at the University of Utah.


Distinctive Factors Affecting The Legal Context Of End-Of-Life Medical Care For Older Persons, Marshall B. Kapp Jul 2017

Distinctive Factors Affecting The Legal Context Of End-Of-Life Medical Care For Older Persons, Marshall B. Kapp

Georgia State University Law Review

Current legal regulation of medical care for individuals approaching the end of life in the United States is predicated essentially on a factual model emanating from a series of high-profile judicial opinions concerning the rights of adults who become either permanently unconscious or are clearly going to die soon with or without aggressive attempts of curative therapy.

The need for a flexible, adaptable approach to medically treating people approaching the end of their lives, and a similar openness to possible modification of the legal framework within which treatment choices are made and implemented, are particularly important when older individuals are ...


The Outer Limits: Imsi-Catchers, Technology, And The Future Of The Fourth Amendment, Ryan C. Chapman Jul 2017

The Outer Limits: Imsi-Catchers, Technology, And The Future Of The Fourth Amendment, Ryan C. Chapman

Pepperdine Law Review

Recent advances in technology are posing new challenges for a legal system based on decades-old precedent. Nowhere is this more apparent than in law enforcement’s warrantless use of IMSI Catchers. These devices mimic a cell phone tower, and when the device is activated, cell phones will naturally connect to them. Law enforcement officers can use those intercepted cell phone signals to track a suspect’s movements in real time with startling accuracy. Scholarly commentary on these devices has largely concluded that their use requires a warrant. This Comment engages in a close examination of Fourth Amendment precedent and argues ...


The Press, Privacy, And Public Figures - A Symposium - Introduction, Donald W. Dowd Jun 2017

The Press, Privacy, And Public Figures - A Symposium - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.


Symposium On A Free Press And A Fair Trial - Introduction, Donald W. Dowd Jun 2017

Symposium On A Free Press And A Fair Trial - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.


Skyjacking: Problems And Potential Solutions - Introduction, Donald W. Dowd Jun 2017

Skyjacking: Problems And Potential Solutions - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.


Prisoner's Rights And The Correctional Scheme: The Legal Controversy And Problems Of Implementation - A Symposium - Introduction, Donald W. Dowd Jun 2017

Prisoner's Rights And The Correctional Scheme: The Legal Controversy And Problems Of Implementation - A Symposium - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.


Clarence Thomas: The First Ten Years Looking For Consistency , Mark C. Niles Jun 2017

Clarence Thomas: The First Ten Years Looking For Consistency , Mark C. Niles

Mark Niles

No abstract provided.


50th Annual William H. Leary Lecture - Fifty Years Of Constitutional Law: What's Changed?, Erwin Chemerinsky Jun 2017

50th Annual William H. Leary Lecture - Fifty Years Of Constitutional Law: What's Changed?, Erwin Chemerinsky

Erwin Chemerinsky

I truly believe that over the next fifty years there will be, as there was in the prior fifty years, an expansion of freedom; an increase in equality. Because here I believe, and I’ll conclude with this, that the late Dr. Martin Luther King got it right when he said “The arc of the moral universe is long but it bends towards justice."