Law Commons^™

Mcdonald V. Chicago, The Fourteenth Amendment, The Right To Bear Arms And The Right Of Self-Defense, Richard L. Aynes

Richard L. Aynes

The Supreme Court of the United States has granted certiorari in the case of McDonald v. City of Chicago to consider this question: "Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses." This case follows and seeks to build upon District of Columbia v. Heller which held that the Second Amendment protects both the right to self-defense and what has been termed an individual right to bear arms. Of course, Heller’s application is limited to the federal government and has no direct …

Enforcing The Bill Of Rights Against The States: The History And The Future, Richard Aynes

Richard L. Aynes

This article traces, in broad strokes, the history of the disputes about whether or not the Bill of Rights can be enforced against the states. It begins with pre-Fourteenth Amendment claims and recounts the actions of the 39th Congress: The Freedman’s Bureau, the Civil Rights Act of 1866, and the Fourteenth Amendment. Several speeches on the Amendment from the Congressional elections of 1866 are utilized, including those of Section 1 author John Bingham, Congressmen Columbus Delano, Rutherford B. Hayes, James Wilson, James Garfield, and Senator John Sherman, as well as Democrats who participated in what has been termed the most …

The Second Amendment And The Myth Of Neutrality: Mcdonald V. City Of Chicago And Judicial Craftsmanship, Craig L. Jackson

Craig L. Jackson

The Supreme Court opinion in McDonald v. City of Chicago was an exercise in one of the Court’s most solemn duties—the identification of a fundamental right. In this case the right identified as fundamental was the right to keep and bear arms. Perhaps it should be called an anointing of a fundamental right because of all of the different jurisprudences that the Court has engaged in since the latter part of the nineteenth century, the identification of fundamental rights for a polity based on principles of liberty is almost sacred. Yet, a fair reading of the opinion, and 2008’s District …

Citizens United And The Threat To The Regulatory State, Tamara R. Piety

Tamara R. Piety

This brief essay, intended for publication in electronic form, discuses the connection between Citizens United v. FEC and the commercial speech doctrine arguing that Citizens United is likely to serve as ammunition to expand protection for commercial speech.

Death, Ineligibility And Habeas Corpus, Lee B. Kovarsky

Lee Kovarsky

I examine the interaction between what I call 'death ineligibility' challenges and the habeas writ. A death ineligibility claim alleges that a criminally-confined capital prisoner belongs to a category of offenders for which the Eighth Amendment forbids execution. By contrast, a 'crime innocence' claim alleges that, colloquially speaking, a capital prisoner 'wasn’t there, and didn’t do it.' In the last eight years, the Supreme Court has identified several new ineligibility categories, including mentally retarded offenders. Configured primarily to address crime innocence and procedural challenges, however, modern habeas law is poorly equipped to accommodate ineligibility claims. Death Ineligibility traces the genesis …

Crime And Punishment: Teen Sexting In Context, Julia Halloran Mclaughlin

Julia Halloran McLaughlin

Justice Souter On Government Speech, Sheldon Nahmod

Sheldon Nahmod

No abstract provided.

Judicial Disqualification In The Aftermath Of Caperton V. A.T. Massey Coal Co., Ronald D. Rotunda

Ronald D. Rotunda

Does Due Process require a judge to disqualify himself if an individual spent independent funds to buy ads that criticized the judge's opponent in a judicial election? The Supreme Court said yes (5 to 4) in the Caperton decision, and thus has created more uncertainty in the law. Does it matter if the person who paid for the independent ads was not a lawyer or a party but was only an employee of the party? And, does it matter if that employee's financial interest in the law suit (if one were to pierce the corporate veil) is minor – substantially …

Rights Done Right: A Critique Of Libertarian Originalism, Andrew C. Spiropoulos

Andrew C. Spiropoulos

No abstract provided.

The Neglected History Of Criminal Procedure, 1850-1940, Wesley M. Oliver

Wesley M Oliver

Originalism has focused the attention of courts and academics on Framing Era history to interpret constitutional limits on police conduct. Previously unexplored sources reveal, however, that Framing Era limits on officers were expressly abandoned as professional police forces were created in the mid-nineteenth century and charged with aggressively investigating and preventing crime. The modern scheme of judicially supervised police investigations was then implemented after corruption and scandals of the 1920s. The development of modern criminal procedure has a rich historical background, but it has almost nothing to do with the events of the Framing Era.

Freedom Of Thought For The Extended Mind: Cognitive Enhancement And The Constitution, Marc J. Blitz

Marc J. Blitz

No abstract provided.

Balancing The Rights Of The Public With The Jurors' Right To Privacy During The Jury Selection Process, Stephen A. Gerst

Stephen A Gerst

It is rare for a trial judge hearing a criminal case to receive a motion to intervene filed by third parties not named in the proceedings. In the jury selection process of cases involving high profile defendants, however, the public - including the press - has a heightened interest in the proceedings. At the same time, the trial judge may have a heightened interest in the protection of juror privacy. This article discusses the issue of when and under what circumstances a trial court may close proceedings to the public during the jury selection process and seal the written responses …

The Inconvenience Of A “Constitution [That] Follows The Flag ... But Doesn’T Quite Catch Up With It”: From Downes V. Bidwell To Boumediene V. Bush, Pedro A. Malavet

Pedro A. Malavet

Boumediene v. Bush, resolved by the U.S. Supreme Court in June of 2008, granted habeas corpus rights, at least for the time being, to the persons detained at Guantanamo Bay Naval Station. The majority partially based its ruling on the doctrine of the Insular Cases, first set forth in the 1901 decision in Downes v. Bidwell. Additionally, the four dissenting justices agreed with the five in the majority that the plurality opinion of Justice Edward Douglass White in Downes —as affirmed by a unanimous court in 1922 in Balzac v. People of Porto Rico— is still the dominant interpretation of …

Putting The World Back Together? Recovering Faithful Citizenship In A Postmodern Age, Harry G. Hutchison

Harry G. Hutchison

Archbishop Chaput’s book, Render Unto Caesar, signifies the continuation of an impressive and persistent debate about what is means to be Catholic and how Catholics should live out the teachings of the Church in political life in our postmodern society. Render Unto Caesar provides evidence that the America’s identity and future are endangered by trends reifying radical human autonomy and choice. New threats surface in the form of legislation and judicial interpretations permitting choices that were once considered criminal to be accepted. This trend has been accompanied, if not facilitated, by U.S. Supreme Court decisions that have contributed greatly to …

Procedural Due Process In Pennsylvania: How The Commonwealth Court Clarified An Ambiguous Concept, John L. Gedid

John L. Gedid

No abstract provided.

The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, Or Judicially-Constructed “Victor’S Impunity”?, C. Peter Erlinder

C. Peter Erlinder

ABSTRACT The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, or Juridically-Constructed “Victor’s Impunity”? Prof. Peter Erlinder [1] ________________________ “…if the Japanese had won the war, those of us who planned the fire-bombing of Tokyo would have been the war criminals….” [2] Robert S. McNamara, U.S. Secretary of State “…and so it goes…” [3] Billy Pilgrim (alter ego of an American prisoner of war, held in the cellar of a Dresden abattoir, who survived firebombing by his own troops, author Kurt Vonnegut Jr.) Introduction Unlike the postWW- II Tribunals, the U.N. Security Council tribunals for the former Yugoslavia [10] …

Amicus Brief, First American Financial Corp. V. Edwards, No. 10-708, Scott Dodson

Scott Dodson

No abstract provided.

Stanley In Cyberspace: Why The Privacy Protection Of The First Amendment Should Be More Like That Of The Fourth, Marc J. Blitz

Marc J. Blitz

No abstract provided.

Two Paths To Judicial Power: The Basic Structure Doctrine And Public Interest Litigation In Comparative Perspective, Manoj Mate

Manoj S. Mate

Конституционно-Правовая Концепция Луиса Брандайза, Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

The article is devoted to the research of the constitutional legal concept by Louis Brandeis - the outstanding American man of law, Associate Justice of the United States Supreme Court. He is considered as one of four greatest judges in XX century. L. Brandeis was possible to become successful in asserting the workers social and labor rights that directly have not been fixed in the United States Constitution. The “Brandeis Brief” became the essential contribution to USA procedural law. Brandeis was a supporter of the “Living Constitution” conception that is based on the idea of social changes, evolutions of the …

Mechanisms For Resolving Divisive Issues In Constitutional Negotiations, Sujit Choudhry, Nicholas Haysom

Sujit Choudhry

This issue paper is part of the ‘Constitution-making in Focus’ series and is focusing on how to deal with divisive issues in a constitution-making process. There can be no fool-proof algorithms for resolving divisive issues to achieve this end, but there are mechanisms with which every negotiation process should be equipped.

Expression And Location: Are There Constitutional Dead Zones?, Brian Slattery

Brian Slattery

No abstract provided.

The End Of Originalism, Jeffrey M. Shaman

Jeffrey M. Shaman

This essay maintains that originalism—the idea that the Constitution should be interpreted according to its original meaning--is nearing its demise. Ironically, the beginning of the end of originalism may have been prompted by the Supreme Court’s decision in District of Columbia v. Heller, marking the first time that a majority of the Court signed onto an opinion emphatically taking an originalist slant. Heller may represent the apogee of originalism and, because it exposes the fundamental flaws of originalism, may also mark the beginning of its decline. Originalism is a radical departure from the Supreme Court’s well-established jurisprudence of a living …

“Intelligence” Searches And Purpose: A Significant Mismatch Between Constitutional Criminal Procedure And The Law Of Intelligence-Gathering, Robert C. Power

Robert C. Power

No abstract provided.

Strangers In A Strange Land: The Importance Of Better Compliance With The Consular Notification Rights, Cindy G. Buys, Scott D. Pollock, Ioana Navarrete

Cindy G. Buys

The right of a foreign national to contact his or her consulate upon arrest or detention in another country has been described as a fundamental and indispensible human right. Yet United States authorities have repeatedly failed to provide foreign nationals and their consulates with notice as required by law. This failure is evidenced by the explosion in litigation of consular notification rights in recent years.

This article explores some of the most interesting legal questions that are being raised in the area of consular notification rights. Drawing on the experiences and perspectives of three attorneys, member of the consular staff …

Forfeiture Of The Right To Counsel: A Doctrine Unhinged From The Constitution, Stephen A. Gerst

Stephen A Gerst

The Sixth Amendment right to an attorney is so fundamental that the United States Supreme Court has carefully developed requirements to ensure that an indigent defendant does not go to trial in any criminal case where there is a possibility of a deprivation of freedom without an attorney unless there is an affirmative waiver of the right to counsel on the record. However, the Supreme Court has not addressed what the record must show for finding that a defendant has lost his right to counsel as a result of the defendant's own misconduct toward the court or the defendant's attorney. …

Who Watches The Watchmen? 'Vigilant Doorkeeping,' The Alien Tort Statute, & Possible Reform, Keith A. Petty

Keith A. Petty

The Alien Tort Statute (ATS) allows alien plaintiffs to file civil actions in U.S. district courts for torts violating the law of nations or U.S. treaties. After the 2nd Circuit’s Filartiga decision in 1980, the debate began as to whether the ATS was a useful tool against human rights violators or an intrusion into U.S. foreign relations. In 2004, the Supreme Court in Sosa v. Alvarez-Machain resolved some of the questions left open by Filartiga.

Sosa concluded that ATS claims must be limited to law of nations violations as well defined as those recognized in 1789. The Court tasked the …