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Book (Oup) - Proportionality Balancing And Constitutional Governance - Chapter 6.Pdf, Alec Stone Sweet 2018 Yale Law School

Book (Oup) - Proportionality Balancing And Constitutional Governance - Chapter 6.Pdf, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.


Book (Oup) - Proportionality Balancing And Constitutional Governance - Chapter 2.Pdf, Alec Stone Sweet 2018 Yale Law School

Book (Oup) - Proportionality Balancing And Constitutional Governance - Chapter 2.Pdf, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.


Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei 2018 Western University

Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei

Master of Laws Research Papers Repository

Guided by prison abolition ethic and intersectional feminism, my key argument is that Charter section 15 is the ideal means of eradicating solitary confinement and its adverse impact on women who are Aboriginal, racialized, mentally ill, or immigration detainees. I utilize a provincial superior court’s failing in exploring a discrimination analysis concerning Aboriginal women, to illustrate my key argument. However, because of the piecemeal fashion in which courts can effect developments in the law, the abolition of solitary confinement may very well occur through a series of ‘little wins’. In Chapter 11, I provide a constitutional analysis, arguing that ...


Church History, Liberty, And Political Morality: A Response To Professor Calhoun, Ian Huyett 2018 Washington and Lee University School of Law

Church History, Liberty, And Political Morality: A Response To Professor Calhoun, Ian Huyett

Washington and Lee Law Review Online

In his address, Professor Calhoun used American Christian abolitionism to illustrate the beneficial role that religion can play in political debate. Surveying the past two millennia, I argue that Christian political thought has protected liberty in every era of the church’s dramatic history. Along the way, I rebut critics—from the left and right—who urge that Christianity’s political influence has been unhelpful or harmful. I also seek to show that statements like “religion has no place in politics” are best understood as expressions of arbitrary bias.


Law By Non-Lawyers: The Limit To Limited License Legal Technicians Increasing Access To Justice, Rebecca M. Donaldson 2018 Seattle University School of Law

Law By Non-Lawyers: The Limit To Limited License Legal Technicians Increasing Access To Justice, Rebecca M. Donaldson

Seattle University Law Review

For the first time in the American legal profession, non-lawyers can openly, independently, ethically, and legally engage in activities recognized by bar associations as the practice of law. In 2012, the Washington Supreme Court passed Admission and Practice Rule 28 (APR 28), establishing the profession’s first paraprofessional licensing scheme that allows non-lawyers to give legal advice. The process authorizes qualified non-lawyers to provide legal advice without the supervision of a lawyer. Washington’s Supreme Court intends for Limited License Legal Technicians, or “LLLTs” as they are known, to increase access to justice by responding to the unmet civil legal ...


Much Ado About Nothing?: Local Resistance And The Significance Of Sanctuary Laws, Alyssa Garcia 2018 Seattle University School of Law

Much Ado About Nothing?: Local Resistance And The Significance Of Sanctuary Laws, Alyssa Garcia

Seattle University Law Review

This Comment explores the current constitutional discourse of sanctuary laws and compares their various components. Part I provides background on the basic policy components of sanctuary laws and modern policies. Part II explores and compares the substantive legal and political value of sanctuary laws. This section will first assess the impact of sanctuary policies on existing immigration and constitutional law. In doing so, specific sanctuary jurisdictions involved in litigation, Seattle, San Francisco, and Chicago, and their likelihood of withstanding preemption under existing doctrine will be compared. The impact sanctuary laws may have on the Tenth Amendment will next be discussed ...


Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt 2018 Chicago-Kent College of Law

Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt

Washington and Lee Law Review Online

In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial ...


The Stored Communications Act: Property Law Enforcement Tool Or Instrument Of Oppression?, Raymond Boyce 2018 West Virginia University College of Law

The Stored Communications Act: Property Law Enforcement Tool Or Instrument Of Oppression?, Raymond Boyce

West Virginia Law Review

No abstract provided.


The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne R. Barnes 2018 Texas A&M University School of Law

The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne R. Barnes

Washington and Lee Law Review Online

Professor Calhoun, in his Article around which this

symposium is based, has asserted that it is permissible for citizens

to publicly argue for laws or public policy solutions based on

explicitly religious reasons.1 Calhoun candidly admits that he has

“long grappled” with this question (as have I, though he for longer),

and, in probably the biggest understatement in this entire

symposium, notes that Professor Kent Greenawalt identified this

as “a particularly significant, debatable, and highly complex

problem.”2 Is it ever. I have a position that I will advance in this

article, but I wish to acknowledge at the ...


America's Creed: The Inevitable, Sometimes Dangerous, Mixing Of Religion And Politics, David M. Smolin 2018 Cumberland Law School, Samford University

America's Creed: The Inevitable, Sometimes Dangerous, Mixing Of Religion And Politics, David M. Smolin

Washington and Lee Law Review Online

Political and philosophical theorists have often advocated for

the exclusion of some or all religious perspectives from full

participation in politics. Such approaches create criteria—such as

public accessibility, public reason, or secular rationale—to

legitimate such exclusion. During the 1990s I argued, as an

evangelical Christian, against such exclusionary theories,

defending the rights to full and equal political participation by

evangelical Christians, traditionalist Roman Catholics, and any

others who would be restricted by such criteria.


Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff 2018 University of Arkansas School of Law, Fayetteville

Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff

Fordham Law Review

Each year, law enforcement seizes thousands of electronic devices—smartphones, laptops, and notebooks—that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password? This Article considers the Fifth Amendment protection against compelled disclosures of passwords—a question that has split and confused courts ...


A Constitutional Case For Extending The Due Process Clause To Asylum Seekers: Revisiting The Entry Fiction After Boumediene, Zainab A. Cheema 2018 Fordham University School of Law

A Constitutional Case For Extending The Due Process Clause To Asylum Seekers: Revisiting The Entry Fiction After Boumediene, Zainab A. Cheema

Fordham Law Review

In the last two decades, the U.S. Supreme Court has actively grappled with balancing the interests of immigrant detainees and the federal government in the context of prolonged immigration detention by reconciling the statutory framework with constitutional guarantees of due process. The Court has focused on how prolonged detention without an opportunity for an individualized custody determination poses a serious constitutional threat to an alien’s liberty interest. The Court’s jurisprudence has focused, however, on aliens who have effected an entry into the United States. The constitutional entitlements of nonresidents who are detained upon presenting themselves at the ...


Open The Jail Cell Doors, Hal: A Guarded Embrace Of Pretrial Risk Assessment Instruments, Glen J. Dalakian II 2018 Fordham University School of Law

Open The Jail Cell Doors, Hal: A Guarded Embrace Of Pretrial Risk Assessment Instruments, Glen J. Dalakian Ii

Fordham Law Review

In recent years, criminal justice reformers have focused their attention on pretrial detention as a uniquely solvable contributor to the horrors of modern mass incarceration. While reform of bail practices can take many forms, one of the most pioneering and controversial techniques is the adoption of actuarial models to inform pretrial decision-making. These models are designed to supplement or replace the unpredictable and discriminatory status quo of judicial discretion at arraignment. This Note argues that policymakers should experiment with risk assessment instruments as a component of their bail reform efforts, but only if appropriate safeguards are in place. Concerns for ...


State Action And The Constitution's Middle Band, Louis Michael Seidman 2018 Georgetown Law

State Action And The Constitution's Middle Band, Louis Michael Seidman

Michigan Law Review

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there ...


State Action And The Constitution's Middle Band, Louis Michael Seidman 2018 Georgetown University Law Center

State Action And The Constitution's Middle Band, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there ...


Laying Siege To The Ivory Tower: Resource Allocation In Response To The Heckler's Veto On University Campuses, Macklin W. Thornton 2018 University of San Diego

Laying Siege To The Ivory Tower: Resource Allocation In Response To The Heckler's Veto On University Campuses, Macklin W. Thornton

San Diego Law Review

High in the towers of academia, the lofty ideals of free speech are tossed around with a deceptive ease. However, as legal minds grapple with heady legal doctrines, free speech has concrete consequences down at the foot of those towers. At this ivory base, the property line between the university and the community blur. Students and nonstudents assemble and deliver conflicting speech that, at times, foments violence. Molotov cocktails, gun shots, broken windows, disgruntled students. All attempts to trigger the dreaded heckler’s veto—an attempt the government has an obligation to prevent. In addition to the public relations disasters ...


Who, What, And Where: A Case For A Multifactor Balancing Test As A Solution To Abuse Of Nationwide Injunctions, Matthew Erickson 2018 Northwestern Pritzker School of Law

Who, What, And Where: A Case For A Multifactor Balancing Test As A Solution To Abuse Of Nationwide Injunctions, Matthew Erickson

Northwestern University Law Review

There has been a significant increase in the use of a controversial, dramatic remedy known as the nationwide injunction. This development is worrisome because it risks substantial harm to the judiciary by encouraging forum shopping, freezing the “percolation” of legal issues among the circuits, and undermining the comity between the federal courts. But a complete ban on nationwide injunctions is both impractical and undesirable. This Note proposes a solution to limit the abuse of nationwide injunctions without banning them outright. When fashioning remedies, courts should simplify the sheer number of relevant factors by focusing on three main meta-factors, or categories ...


They Try: How The Supreme Court Has Addressed Issues Of Racial And Gender Discrimination In The Jury Selection Process, Jana C. Kelnhofer 2018 Clark University

They Try: How The Supreme Court Has Addressed Issues Of Racial And Gender Discrimination In The Jury Selection Process, Jana C. Kelnhofer

Scholarly Undergraduate Research Journal at Clark

The rise of publicized police brutality cases (but not the rise in number of cases themselves) has resulted in an increase of public scrutiny of the court process. More often than not, police officers are found not guilty by a jury of their peers, only for the public to later find out that the jury was composed almost entirely of whites. How did this process start? How does it persist? Has the legal system attempted to address this problem, and discrimination in the jury selection process in general? By examining past Supreme Court decisions, this review explores the ways that ...


The Problem Of Purely Procedural Preemption Presented By The Federal Hear Act, William L. Charron 2018 Pryor Cashman LLP, partner

The Problem Of Purely Procedural Preemption Presented By The Federal Hear Act, William L. Charron

Pepperdine Law Review

The underlying purpose of the Holocaust Expropriated Art Recovery Act of 2016 (the HEAR Act), which is to return Nazi-looted artwork to victims or their families, is undeniably laudable. Restituting Nazi-looted artwork is and has been a moral objective of this country since the conclusion of World War II. It is equally clear that victims and their families can often face obstacles to gathering evidence from the war that would demonstrate Nazi theft in court. The HEAR Act strives to address these concerns by imposing a federal statute of limitations over all state law causes of action that would enable ...


Ericsson, Inc. V. Regents Of The University Of Minnesota And A New Frontier For The Waiver By Litigation Conduct Doctrine, Jason Kornmehl 2018 Sullivan & Cromwell LLP, Associate

Ericsson, Inc. V. Regents Of The University Of Minnesota And A New Frontier For The Waiver By Litigation Conduct Doctrine, Jason Kornmehl

Pepperdine Law Review

Eleventh Amendment sovereign immunity is one of the most confusing areas of constitutional law. The waiver by litigation conduct doctrine represents a particularly complex aspect of Eleventh Amendment immunity. Courts, for example, have not precisely defined the extent to which waiver in a prior proceeding might extend to a future one. The Patent Trial and Appeals Board recently considered this issue in a novel context. In Ericsson, Inc. v. Regents of the University of Minnesota, the Patent Trial and Appeals Board applied the waiver by litigation conduct doctrine in an inter partes review proceeding. Combining the Eleventh Amendment, non-Article III ...


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