Law Commons^™

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 …

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 …

Did Expressions Hair Design V. Schneiderman Reconstitute The Bygone Lochner Era: How A New Case About Free Speech Is Like An Old Case About The Right To Contract, Jesse D. H. Snyder, Andrew F. Gann Jr.

South Carolina Law Review

No abstract provided.

Revisiting The Definition Of Particular Social Group In The Refugee Convention & Increasing The Refugee Quota As A Means Of Ameliorating The International Displaced Person's Crisis, Brienna Bagaric

South Carolina Law Review

No abstract provided.

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 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 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 led to devastating …

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, but rather, as Texas Gov. …

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 may …

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

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

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 that, as …

A Promise Unfulfilled: Challenges To Georgia’S Death Penalty Statute Post-Furman, William Cody Newsome

Georgia State University Law Review

In Furman v. Georgia, the U.S. Supreme Court agreed with Furman’s counsel. Three Justices agreed that Georgia law, as applied, was arbitrary and potentially discriminatory. Moreover, one Justice challenged the value of the death penalty and doubted it served any of the alleged purposes for which it was employed.

Although many challenges subsequent to Furman have been raised and arguably resolved by the Court, the underlying challenges raised by Furman appear to remain prevalent with the Court. Justice Breyer recently echoed the concurring opinions of Furman in his dissenting opinion from Glossip v. Gross, when he stated: “In …

Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke

William & Mary Bill of Rights Journal

This Article integrates two scholarly conversations to shed light on the divergent ways in which courts and legislatures implement constitutional texts. First, there is a vast literature examining the different ways in which courts and extrajudicial institutions, including legislatures, implement the Constitution’s textually vague expressions. Second, in recent years legal philosophers have begun to use philosophy of language to elucidate the relationship between vague legal texts and the content of laws. There is little scholarship, however, that uses philosophy of language to analyze the divergent ways in which legislatures and courts implement vague constitutional provisions. This Article argues that many …

The Vice Presidency In The Twenty-First Century, Jody C. Baumgartner

Pepperdine Law Review

The vice presidency has undergone almost revolutionary change since its inception 227 years ago. Conceived as a convenient solution to a problem created by the Electoral College, the Vice President has only two constitutional functions—to serve as a successor to the President and as the President of the Senate. However, over the past sixty years, vice presidents have become increasingly part of and integral to American governance, and the last three (Al Gore, Dick Cheney, and Joe Biden) have been exceptionally active executive actors. What was once an all-but forgotten office is now an essential part of a president’s administration. …

The Vice President-More Than An Afterthought?, Richard B. Cheney, Edwin Meese Iii, Douglas W. Kmiec

Pepperdine Law Review

A round-table discussion among former U.S. Vice President Richard B. Cheney, Caruso Family Professor of Law and retired U.S. Ambassador Douglas Kmiec, and former U.S. Attorney General Edwin Meese III considered the practical implications of conceiving the Vice President as a legislative officer, an executive officer, or both. It was noted that until the second half of the twentieth century, the Office of the Vice President was conceived as legislative. Funding for the Office appeared in budget lines relating to Congress and physically, the Vice President’s office was in the Capitol. Beginning with Walter Mondale’s service as Vice President, presidents …

A Constitutional Afterthought: The Origins Of The Vice Presidency, 1787 To 1804, Edward J. Larson

Pepperdine Law Review

At the origins of the office, even though the Vice President was, as its first occupant John Adams declared, “only one breath” away from the presidency, the Office of the Vice President was an afterthought of the Constitutional Convention. Never discussed during the first three months of the four-month long Convention, the Committee of Eleven introduced the vice presidency as a byproduct of how it resolved to fix the presidential selection process. Under this process, the Electoral College emerged, with each state assigned the same number of electors as its members in the House of Representatives and Senate. Each elector …

Perspectives From The Bench On Feminist Judgments, Elinore Marsh Stormer

ConLawNOW

Judge Elinore Marsh Stormer, probate judge in Summit County, Ohio, gave these remarks as part of a panel discussion on feminist judging. The discussion took place at a conference sponsored by the Center for Constitutional Law at the University of Akron in October 2016. Judge Stormer offered insights on her own experience as a woman judge and on the role of judges addressing issues of gender equality in their courts.

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

Pepperdine Law Review

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 light of …

A Meaningful Opportunity For Release: Resentencing Hearings For Juvenile Offenders Sentenced To Life Without Parole Following Aiken V. Byars, Robert M. Dudek

South Carolina Law Review

No abstract provided.

Protecting America’S Children: Why An Executive Order Banning Juvenile Solitary Confinement Is Not Enough, Carina Muir

Pepperdine Law Review

Despite its devastating psychological, physical, and developmental effects on juveniles, solitary confinement is used in juvenile correctional facilities across the United States. This Comment posits that such treatment violates the Eighth Amendment’s Cruel and Unusual Punishment Clause, the United Nations’ Convention on the Rights of the Child, and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. It likewise argues that that President Obama’s recent Executive Order banning juvenile solitary confinement is simply not a powerful enough remedy and discusses why it must be paired with Congressional legislation or Supreme Court jurisprudence if it is to …

God And State Preambles, Peter J. Smith, Robert W. Tuttle

Marquette Law Review

Those who question the permissibility of official acknowledgements of God might be surprised to learn that the preambles of forty-five of the fifty state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in all regions of the country. Virtually all of those preambles give thanks to God, and many also seek God's blessing n the state's endeavors. Yet there has been no detailed assessment of the preambles' history or significance. This paper seeks to remedy that gap.

The preambles complicate the claim that official acknowledgements of God are incompatible with …

The Value Of The Right To Exclude: An Empirical Assessment, Jonathan Klick, Gideon Parchomovsky

University of Pennsylvania Law Review

Property theorists have long deemed the right to exclude fundamental and essential for the efficient use and allocation of property. Recently, however, proponents of the progressive property movement have called into question the centrality of the right to exclude, suggesting that it should be scaled back to allow the advancement of more socially beneficial uses of property. Surprisingly, the debate between the opponents and detractors of the right to exclude is devoid of any empirical evidence. The actual value of the right to exclude remains unknown. In this Article, we set out to fill this void by measuring, for the …