Law Commons^™

Delegated Decree Authority In Contemporary South America: Comparative Study Of The Radical Left And Their Threat To The Rule Of Law, Kerry Mohan

Kerry Mohan

International attention regarding Executive decree authority within Latin America has significantly increased following Hugo Chávez’ 2007 enabling law in Venezuela. This attention has largely been negative, as the international media has often vilified Chávez for promulgating decrees with the force of law. What the international media has continually failed to discuss, however, is that Chávez’ form of decree authority, “delegated decree authority” or “DDA,” has been common throughout Venezuela’s history and most of South America. This article seeks to determine DDA’s prevalence within South America, and in particular Venezuela, Ecuador, and Colombia, and determine whether DDA poses a threat to …

Pleading Their Case: How Ashcroft V. Iqbal Extinguishes Prisoners’ Rights, Maureen Brocco

Maureen Brocco

Ashcroft v. Iqbal, decided on May 18, 2009, increased the evidentiary burden required to survive a Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss to a strict plausibility standard. While this decision affects almost all civil claims in the federal court system, its impact is particularly troublesome in the realm of prisoners’ rights litigation. For a prisoner, such onerous pre-litigation fact-finding requirements can turn the administration of justice into an unattainable goal. Since prisoners’ claims are often against their captors, government officials, this heightened pleading burden may leave victims of egregious unconstitutional actions by government officials without …

Deferring To The Assertion Of National Security: The Creation Of A National Security Exemption Under The National Environmental Policy Act Of 1969, Emily Donovan

Emily Donovan

The National Environmental Policy Act of 1969 (NEPA) aims to ensure that agencies consider the potential environmental impacts of their actions before engaging in them. In contrast to other major environmental legislation, Congress did not include a national security exemption under NEPA, meaning that, in theory, agencies in the business of national security must comply with NEPA just as any other agency, by considering mitigation measures and alternatives, and preparing environmental impact statements when necessary. The courts, however, in deciding NEPA noncompliance cases, have created a national security exemption that the legislature never intended. They have done so by failing …

Delegated Decree Authority In Contemporary South America: Comparative Study Of The Radical Left And Their Threat To The Rule Of Law, Kerry Mohan

Kerry Mohan

International attention regarding Executive decree authority within Latin America has significantly increased following Hugo Chávez’ 2007 enabling law in Venezuela. This attention has largely been negative, as the international media has often vilified Chávez for promulgating decrees with the force of law. What the international media has continually failed to discuss, however, is that Chávez’ form of decree authority, “delegated decree authority” or “DDA,” has been common throughout Venezuela’s history and most of South America. This article seeks to determine DDA’s prevalence within South America, and in particular Venezuela, Ecuador, and Colombia, and determine whether DDA poses a threat to …

Be Careful What You Wish For: Why Mcdonald V. City Of Chicago's Rejection Of The Privileges Or Immunities Clause May Not Be Such A Bad Thing For Rights, Jeffrey D. Jackson

Jeffrey D Jackson

On June 28, 2010, the United States Supreme Court handed down its much-awaited decision in McDonald v. City of Chicago, in which it held that the Second Amendment was incorporated against the States through the Fourteenth Amendment's Due Process Clause. In so doing, it rejected the opportunity to overrule its much-reviled opinion in The Slaughter-House Cases and incorporate the Second Amendment through the Fourteenth Amendment's Privileges or Immunities Clause. Thus ended what was probably the last, best attempt to revive what many consider to be the original meaning of privileges or immunities.

Although no doubt disappointing to those who saw …

Déjà Vu: From Comic Books To Video Games: Legislative Reliance On “Soft Science” To Protect Against Uncertain Societal Harm Linked To Violence V. The First Amendment, Terri R. Day, Ryan C.W. Hall M.D.

Terri R. Day

This article discusses the weaknesses and limitations of social science evidence to prove that the virtual world of violent video games causes any real world harm. The Supreme Court, in its next term, will consider the constitutionality of California’s ban on the sale and rental of violent video games to minors. The controversy on violent video games is the latest legislative attempt to ban access and distribution of violent materials to children, reminiscent of the comic books debate over sixty years ago. This paper goes beyond a discussion of the First Amendment obstacles to violent video game restrictions. It focuses …

Justice Rutledge's Appendix, John T. Valauri

John T. Valauri

Much disagreement and dispute have occurred since the Supreme Court inaugurated the modern era of Establishment Clause doctrine in 1947 in Everson v. Board of Education. Yet rather than turn elsewhere, this article argues that the best path to clarification of this doctrine lies in a return to basics, a return to what that case put forward as the basis of the meaning of the Establishment Clause—Madison’s role in the religious liberty struggle in Virginia in the 1780’s and, above all, in his Memorial and Remonstrance. But this examination focuses on what the justices in Everson did not—the principle of …

The Pinkerton Problem, Bruce A. Antkowiak

Bruce A Antkowiak

Pinkerton is a longstanding principle of criminal law that holds a conspirator liable for the substantive crimes of his confederates as long as they were committed during the course of and in furtherance of the conspiracy, and as long as they were objectively and reasonably foreseeable to a defendant. This leads to liability being imposed on individuals who did not personally have the mens rea required to commit the crime for which they are sentenced. The article argues that the use of such conspirator liability rules in many jurisdictions (federal and state) violates both due process and separation of powers …

A First Amendment Theory For Protecting Attorney Speech, Margaret C. Tarkington

Margaret C Tarkington

In June 2010, the United States Supreme Court held that Congress could constitutionally prohibit attorneys from providing legal assistance and advice regarding lawful nonviolent conduct to groups that the Secretary of State has designated as Foreign Terrorist Organizations (FTOs). The plaintiffs wished to assist two FTOs invoke international human rights law, petition the United Nations and United States Congress, and peacefully resolve their disputes. The Supreme Court held that the statute clearly prohibited plaintiffs’ proposed activities, but did not violate the Free Speech Clause of the First Amendment because the attorneys could still engage in “independent advocacy” of any message …

When Is Aesthetic Expression Speech?: The Neurobiology Of Decision-Making And The Need To Fully Protect Aesthetic Expression As Speech Under The First Amendment, Mary B. Russell

Mary B. Russell

This Article investigates which non-linguistic aesthetic expressions are and should be protected as “speech” under the First Amendment. It argues that “speech” should not be limited to linguistic expressions because aesthetic expressions are very powerful in decision-making, including the decisions central to the individual’s role in a democracy. This Article’s argument centers on the current work of neuroscience, which refutes the idea that individuals make decisions, even political decisions, solely on the basis of ideas expressed in language. Rather, all sensory experiences contribute to the brain’s process of decision-making. The work of neuroscience in this area supports the argument the …

Using Cognitive Neuroscience To Provide A Procedure For The Involuntary Commitment Of Violent Criminals As A Part Of Or Following The Duration Of Their Sentence, Adam Lamparello

Adam Lamparello

No abstract provided.

Inheriting Inequality: Wealth, Race, And The Laws Of Succession, Palma Joy Strand

palma joy strand

The article begins by documenting deep inequality in the form of Black-White wealth disparities: While the overall wealth distribution in the United States is highly unequal from both historical and international perspectives, racial wealth disparities are particularly acute, with median Black net worth approximately a tenth of median White net worth (as compared to median Black income that is approximately two-thirds of median White income). Next, the article ties the perpetuation of this inequality to current inheritance law. It then confronts this inequality as a civil rights issue in terms of its social effects, its historical causes, and legal avenues …

Shift Happens: The Supreme Court Of The United States’ Shifting Anti-Discrimination Rhetoric, Theresa M. Beiner

Theresa M. Beiner

The United States Supreme Court's discourse on discrimination affects how fundamental civil rights -- such as the right to be free from gender and race discrimination B are adjudicated and conceptualized in this country. Shortly after Congress=s passage of Title VII of the Civil Rights Act of 1964, the Court established precedent that assumed discrimination, absent some other compelling explanation for employer or government conduct. Over time, however, that presumption has dissipated and today, the Court actually presumes non-discrimination absent some evidence that shows an employer or governmental actor was intentionally discriminating. This paper will describe the shift in the …

Delegated Decree Authority In Contemporary South America: Comparative Study Of The Radical Left And Their Threat To The Rule Of Law, Kerry Mohan

Kerry Mohan

International attention regarding Executive decree authority within Latin America has significantly increased following Hugo Chávez’ 2007 enabling law in Venezuela. This attention has largely been negative, as the international media has often vilified Chávez for promulgating decrees with the force of law. What the international media has continually failed to discuss, however, is that Chávez’ form of decree authority, “delegated decree authority” or “DDA,” has been common throughout Venezuela’s history and most of South America. This article seeks to determine DDA’s prevalence within South America, and in particular Venezuela, Ecuador, and Colombia, and determine whether DDA poses a threat to …

Salazar V. Buono: Sacred Symbolism And The Secular State, Ian C. Bartrum

Ian C Bartrum

This short piece discusses some doctrinal and theoretical implications of the Court's recent decision.

Delegated Decree Authority In Contemporary South America: Comparative Study Of The Radical Left And Their Threat To The Rule Of Law, Kerry Mohan

Kerry Mohan

International attention regarding Executive decree authority within Latin America has significantly increased following Hugo Chávez’ 2007 enabling law in Venezuela. This attention has largely been negative, as the international media has often vilified Chávez for promulgating decrees with the force of law. What the international media has continually failed to discuss, however, is that Chávez’ form of decree authority, “delegated decree authority” or “DDA,” has been common throughout Venezuela’s history and most of South America. This article seeks to determine DDA’s prevalence within South America, and in particular Venezuela, Ecuador, and Colombia, and determine whether DDA poses a threat to …

Delegated Decree Authority In Contemporary South America: Comparative Study Of The Radical Left And Their Threat To The Rule Of Law, Kerry Mohan

Kerry Mohan

International attention regarding Executive decree authority within Latin America has significantly increased following Hugo Chávez’ 2007 enabling law in Venezuela. This attention has largely been negative, as the international media has often vilified Chávez for promulgating decrees with the force of law. What the international media has continually failed to discuss, however, is that Chávez’ form of decree authority, “delegated decree authority” or “DDA,” has been common throughout Venezuela’s history and most of South America. This article seeks to determine DDA’s prevalence within South America, and in particular Venezuela, Ecuador, and Colombia, and determine whether DDA poses a threat to …

The Florida Beach Case And The Road To Judicial Takings, Michael Blumm

Michael Blumm

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously upheld a state beach restoration project against landowner claims of an unconstitutional taking of the property. This result was not nearly as surprising as the fact that the Court granted certiorari on a case that turned on an obscure aspect of Florida property law: whether landowners adjacent to a beach had the right to maintain contact with the water and the right to future accretions of sand.

The Court’s curious interest in the case was piqued by the landowners’ recasting the case from the …

Making Sense Of State Action, Lauren E. Tribble, John Dorsett Niles, Jennifer N. Wimsatt

Lauren E. Tribble

Perhaps no question of constitutional law is more fundamental than whether the Constitution applies. The Bill of Rights, Fourteenth Amendment, and Fifteenth Amendment protect individuals’ rights from invasion by the state, but they do not protect against private action. Separating “state action” from “private action” thus poses a critical constitutional question, and it is one with which the U.S. Supreme Court has grappled more than seventy times since 1883. Unfortunately, the Court’s state-action rulings provide something less than a model of clarity. Many rulings seem inconsistent, and issues of first impression frequently have created new lines of precedent that speak …

War Courts: Terror's Distorting Effects On Federal Courts, Collin P. Wedel

Collin P Wedel

In recent years, federal courts have tried an increasing number of suspected terrorists. In fact, since 2001, federal courts have convicted over 403 people for terrorism-related crimes. Although much has been written about the normative question of where terrorists should be tried, scant research exists about the impact these recent trials have had upon the Article III court system. The debate, rather, has focused almost exclusively upon the proper venue for these trials and the hypothetical problems and advantages that might inhere in each venue. The war in Afghanistan, presenting a host of thorny legal issues, is now the longest …

May It Please The Senate: An Empirical Analysis Of The Senate Judiciary Committee Hearings Of Supreme Court Nominees, 1939-2009, Lori A. Ringhand, Paul M. Collins

Lori A. Ringhand

This paper examines the questions asked and answers given by every Supreme Court nominee who has appeared to testify before the Senate Judiciary Committee since 1939. In doing so, it uses a new dataset developed by the authors. This dataset, which provides a much-needed empirical foundation for scholarship in emerging areas of constitutional law and political science, captures all of the statements made at the hearings and codes these comments by issue area, subissue area, party of the appointing president, and party of the questioning senator. The dataset allows us to quantify for the fist time such things as which …

The Path Of Posner's Pragmatism, Edward Cantu

Edward Cantu

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. The article discusses the current state of legal pragmatism in the form espoused by its chief proponent Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful …

Perpetuating Ageism Via Adoption Standards And Practices, Sara C. Mills

Sara C Mills

More than a quarter of Americans consider adoption at some point in their lives. During the adoption process, courts strive to promote and foster the children’s best interests, but this often involves discriminatory decisions that deprive older adoptive parents of the same opportunities as younger adoptive parents. Discrimination in adoption proceedings is nothing new, and legislators, courts, and scholars have explored how it impacts minorities, same-sex couples, single parents, and divorcees. However, age discrimination in adoption also exists, and courts condone it by approving placements that are dictated by private agencies’ discriminatory ideologies. This article thus provides the first systematic …

What Mcdonald Means For Unenumerated Rights, Aaron Christopher Bryant

Aaron Christopher Bryant

In June a splintered Supreme Court held in McDonald v. City of Chicago that the Second Amendment applied to state and local governments. But the case was about much more than handguns. It presented the Court with an unprecedented opportunity to correct its erroneous precedent and revive the Fourteenth Amendment’s Privileges or Immunities Clause. The plurality declined the offer not, as Justice Alito’s opinion suggested, out of a profound respect for stare decisis, but rather because at least four Justices like the consequences of that ancient error, especially insofar as unenumerated rights are concerned. This observation in turn raises questions …

Disabling Able: Why The Virginia Supreme Court Must Address Recent Changes In Narcotics Distribution Law, Kevin R. Pettrey

Kevin R Pettrey

The Virginia General Assembly has proscribed distributing narcotics within the Commonwealth. In order to further deter this illegal activity, increased punishments for repeat offenders have been established. However, what a charging document must allege changed in 2009 but these technical requirements are not always complied with. Prior to 2009, Virginia Code § 18.2-248 only required that a conviction be a “second or subsequent conviction” in order to qualify a defendant for a heightened sentence. In 2009, the Virginia General Assembly passed HB 2362 which required charging documents to allege that a defendant was convicted of violating Virginia Code § 18.2-248 …

State V Fowler: North Carolina Dwi Procedure Considered, Jeffrey Martin

Jeffrey Martin

This case has its origin in attempts by the government of North Carolina to reduce drunk driving fatalities and improve road safety.

Inheriting Inequality: Wealth, Race, And The Laws Of Succession, Palma Joy Strand

palma joy strand

The article begins by documenting deep inequality in the form of Black-White wealth disparities: While the overall wealth distribution in the United States is highly unequal from both historical and international perspectives, racial wealth disparities are particularly acute, with median Black net worth approximately a tenth of median White net worth (as compared to median Black income that is approximately two-thirds of median White income). Next, the article ties the perpetuation of this inequality to current inheritance law. It then confronts this inequality as a civil rights issue in terms of its social effects, its historical causes, and legal avenues …

Anti-Cyber Bullying Statutes: Threat To Student Free Speech, John O. Hayward

John O. Hayward

In October 2006, thirteen-year-old Megan Meier committed suicide because of postings on MySpace, an Internet social networking site. As a result, twenty-one states have passed statutes prohibiting cyber bullying, i.e., bullying by electronic means. Many of these laws threaten student free speech. This article examines cyber bullying, the laws it has spawned, how they chill student speech, their constitutionality, and proposes a Model Anti-Cyber Bullying Law.

Terrorism Online: Is Speech The Same As It Ever Was?, Steven R. Morrison

Steven R Morrison

Abstract to “Terrorism Online: Is Speech the Same as It Ever Was?” By Steven R. Morrison Like all of us, terrorists now use the Internet for many purposes. It is commonly believed that planning operations, fundraising, and recruitment are the three main ways that terrorists take advantage of online communication. While it is clear that speech related to the first two can be prohibited, online recruitment speech may be protected under the First Amendment. As a result, a number of commentators have been concerned at online recruitment and the fact that our current speech rules may not be adequate to …

Acontextual Judicial Review, Louis Michael Seidman

Louis Michael Seidman

Is constitutional judicial review a necessary component of a just polity? A striking feature of the current debate is its tendency to proceed as if the question could be answered in the same way always and everywhere. Defenders of constitutional review argue that is a conceptually necessary feature of constitutionalism, the rule of law, and the effective protection of individual rights. Critics claim that it is necessarily inconsistent with progressive politics and democratic engagement. Largely missing from the debate is a fairly obvious point: Like any other institution, constitutional review must be evaluated within a particular temporal, cultural, and political …