Law Commons^™

How Scotus's Recent Decision On The Cheerleader Case Impacts Public School Students' Due Process Rights For Their Off-Campus Conduct, Abby Efron

St. Mary's Law Journal

No abstract provided.

The Inconvenience Of Justice: How Unmitigated Official Misconduct Almost Destroyed The Lives Of Five Young Boys From Harlem, Stefania Bordone, David Wright

Journal of Race, Gender, and Ethnicity

No abstract provided.

Reconsidering Constitutional Protection For Health Information Privacy, Wendy K. Mariner

Faculty Scholarship

What kinds of health information should be reported to government for civil purposes? Several competing trends encourage efforts to reassess the scope of constitutional protection for health information: the social and commercial value of health information; the amount of data held by third parties, from health care providers to internet servers; critiques of the third party doctrine exception to Fourth Amendment protection; and concerns about the loss of privacy. This article describes a variety of civil purposes for which health information is collected today. A close analysis of cases applying the third party doctrine, administrative search principles, and the special …

The Failure Of The Federal Courts To Incorporate O'Connor's Dangerousness Requirement Into The Standards Utilized In Actions Challenging Wrongful Civil Comments, Svetlana Walker

Touro Law Review

No abstract provided.

Rethinking Immigration’S Mandatory Detention Regime: Politics, Profit, And The Meaning Of “Custody”, Philip L. Torrey

University of Michigan Journal of Law Reform

Immigration detention in the United States is a crisis that needs immediate attention. U.S. immigration detention facilities hold a staggering number of persons. Widely believed to have the largest immigration detention population in the world, the United States detained approximately 478,000 foreign nationals in Fiscal Year 2012. U.S. Immigration and Customs Enforcement (ICE), the agency responsible for immigration enforcement, boasts that the figure is “an all-time high.” In some ways, these numbers are unsurprising, considering that the United States incarcerates approximately one in every one hundred adults within its borders—a rate five to ten times higher than any other Westernized …

What Is Criminal Restitution?, Cortney E. Lollar

Law Faculty Scholarly Articles

A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore moves far beyond its traditional purpose of disgorging a defendant's ill-gotten gains. Instead, restitution has become a mechanism of imposing additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections that normally attach to criminal proceedings. This Article deploys a novel …

History Repeats Itself: Parallels Between Current-Day Threats To Immigrant Parental Rights And Native American Parental Rights In The Twentieth Century, Vinita B. Andrapalliyal

University of Massachusetts Law Review

Immigrant parents are currently burdened with unique risks to their parental rights, risks that bear little relation to their ability to care for their children. Recent developments in family and immigration law, historical cultural prejudices against non-Western parenting traditions, and poor immigrants’ limited access to the U.S. legal system are largely to blame. This Note explores the inadequacies in our legal system contributing to the struggles of immigrant parents to maintain family unity and connects the current situation to the disproportionate number of terminations of parental rights within the Native American community in the mid-twentieth century. It suggests that a …

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

Irene Scharf

The case alerted me to the continuing issue concerning the treatment of alleged violations of Fourth Amendment rights in immigration court, with this article the result of research conducted relating thereto. Beyond reviewing the relevant views of the federal courts of appeals; the administrative tribunal that handles appeals of immigration court cases, the Board of Immigration Appeals (BIA); and even local immigration courts; I consider whether the jurisprudence has remained static since the Supreme Court's watershed opinion on the issue about twenty-five years ago. I also offer suggestions as to how to effectively, fairly, and efficiently resolve the issues raised …

The Costs Of Delay: Incompetent Criminal Defendants, Involuntary Antipsychotic Medications, And The Question Of Who Decides, Dora W. Klein

Faculty Articles

Whether an incompetent pretrial detainee is entitled to a judicial hearing before he may be administered involuntary antipsychotic medication is a matter of contention. The question of the constitutionality, with regard to the Due Process clause, of involuntary medication to diminish a detainee’s dangerousness is one that arises at the intersection of two United States Supreme Court cases, Washington v. Harper and Sell v. United States.

In Harper, the Court ruled that a convicted prisoner is not entitled to a judicial hearing before he may be administered involuntary antipsychotic medications when the medications are necessary to diminish the prisoner’s dangerousness …

Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi

Hariqbal Basi

For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order to …

Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi

Hariqbal Basi

Abstract- For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order …

The Affects Of Apprendi V. New Jersey On The Use Of Dna Evidence At Sentencing—Can Dna Alone Convict Of Unadjudicated Prior Acts?, Katharine C. Lester

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

Faculty Publications

The case alerted me to the continuing issue concerning the treatment of alleged violations of Fourth Amendment rights in immigration court, with this article the result of research conducted relating thereto. Beyond reviewing the relevant views of the federal courts of appeals; the administrative tribunal that handles appeals of immigration court cases, the Board of Immigration Appeals (BIA); and even local immigration courts; I consider whether the jurisprudence has remained static since the Supreme Court's watershed opinion on the issue about twenty-five years ago. I also offer suggestions as to how to effectively, fairly, and efficiently resolve the issues raised …

Advocating For The Constitutional Rights Of Nonresident Fathers, Vivek Sankaran

Articles

Months after a child welaare case is petitioned, a nonresident father appears in court and requests custody of his children who are living in foster care. Little is known about the father, and immediately, the system-judge, caseworkers, and attorneys view him with suspicion and caution, inquiring about his whereabouts and his prior involvement in the children's lives. Those doubts, in turn, raise complicated questions about his legal rights to his children. As a practioner working in the child welfare system, you're likely to face this scenario. The largest percentage of child victims of abuse and neglect come from households headed …

The Case For Applying The Eighth Amendment To Corporations, Elizabeth S. Warren

Vanderbilt Law Review

ABC Corporation employs fifty drivers and transports various products across state lines. An employee of ABC corporation secretly carries small amounts of illegal drugs in the trailers of the trucks he drives and does so without detection for five years. After law enforcement authorities discover the drug trafficking, the United States files an in rem action under 21 U.S.C. section 881(a)(4), seeking forfeiture of every truck that the guilty driver drove over the past five years and every trailer in which the guilty driver carried drugs. This forfeiture could result in ABC Corporation's losing a third of its trucks and …

Right To A Jury Trial

Touro Law Review

No abstract provided.

The Relevance Of Water “Ownership” To Water Markets And Other Issues, Barton H. Thompson, Jr.

Water Organizations in a Changing West (Summer Conference, June 14-16)

31 pages.

Contains references.

Criminal Trespass And The Exclusionary Rule In Texas., Paul R. Stone, Henry De La Garza

St. Mary's Law Journal

In State v. Hobbs, the Texas Fourth Court of Appeals held a warrantless intrusion by police onto private property to obtain evidence constitutes criminal trespass under Section 30.05 of the Texas Penal Code. The resulting evidence falls within the exclusionary rule and this article considers whether this protection, which goes beyond constitutional guarantees, is necessary or desirable. The first part of this paper reviews existing federal and state constitutional protections against unreasonable searches. Next, the paper analyzes the history and purpose of criminal trespass and the exclusionary rule in Texas. Finally, the paper considers a question the court of appeals …

The Legal And Political Challenges To Academic Eligibility Requirements, Barbara Ferguson

Marquette Sports Law Review

No abstract provided.

Prosecutorial Indiscretion And The United States Congress: Expanding The Jurisdiction Of The Independent Counsel, Brian A. Cromer

Kentucky Law Journal

No abstract provided.

Terrorism, Law, And Our Constitutional Order, Christopher L. Blakesley

Scholarly Works

We have all suffered moments of vicarious terror over the past few years as we watched news accounts of terrorist incidents, such as the downing of Pan Am Flight 103 over Lockerbie, Scotland. There, some institution, government, or group used innocent children, women, and men as fodder for their “war.” Some have claimed that the pusillanimous carnage was in retaliation for the slaughter of equivalent innocents aboard the Iranian Air Bus, similarly destroyed by American forces during the summer of 1988. Others suggested that it was committed by those interested in thwarting prospects of peace in the Middle East.

Combatting …

The Doctrine Of Inevitable Discovery: A Plea For Reasonable Limitations, Steven P. Grossman

All Faculty Scholarship

In reinstating the Iowa murder conviction of Robert Williams, the Supreme Court accepted explicitly for the first time the doctrine of inevitable discovery. Applied for some time by state and federal courts, the doctrine of inevitable discovery is a means by which evidence obtained illegally can still be admitted against defendants in criminal cases. Unfortunately, the Court chose to adopt the doctrine without any of the safeguards necessary to insure that the deterrent impact of the exclusionary rule would be preserved, and in a form that is subject to and almost invites abuse.

This article warns of the danger to …

Do We Need A Parent-Child Privilege, David A. Schlueter

Faculty Articles

This article addresses proposals to adopt a parent-child privilege, and notes that currently incriminating statements made between parents and children are admissible as evidence. However, there is a popular move to urge codification of a parent-child privilege that would protect any statements made or actions observed within the parent-child relationship. Evidentiary privileges are generally disfavored because they potentially block otherwise relevant evidence, but some relationships, such as the parent-child relationship, deserve assurance that shared confidences will be protected.

To overcome the reluctance to adopt yet another privilege, proponents of the parent-child privilege typically offer a number of justifications. These include …

The Creeping Eruption Of Mt. Healthy, Morell E. Mullins Sr.

Faculty Scholarship

No abstract provided.

Proposal For Determinate Sentencing In New York: The Effect On An Offender's Due Process Rights, John D. Winter

Fordham Urban Law Journal

This Note examines the differences between indeterminate sentencing, the goal of which is rehabilitative, and determinate sentencing. It looks at the constitutional and procedural safeguards due to prisoners at sentencing. Finally, the Note looks at legislation introduced in New York and its proposals for changing the sentencing procedures.

Revocation Of Conditional Liberty For The Commission Of A Crime: Double Jeopardy And Self-Incrimination Limitations, Michigan Law Review

Michigan Law Review

Persons on deferred sentence, probation, or parole who arguably violate the criminal law may face two proceedings: a hearing to revoke their conditional liberty and a criminal trial. The possibility of two proceedings raises at least two major constitutional questions. First, are the defendant's rights under the double jeopardy or due process clauses violated if the state holds two inquiries into the alleged criminal act? Second, is the defendant's privilege against self-incrimination abridged if the revocation hearing is held before the criminal trial?