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Duties Of Capital Trial Counsel Under The California “Death Penalty Reform And Savings Act Of 2016”, Robert M. Sanger 2017 Santa Barbara College of Law

Duties Of Capital Trial Counsel Under The California “Death Penalty Reform And Savings Act Of 2016”, Robert M. Sanger

Robert M. Sanger

Every trial lawyer who is handling a capital case in California or who has handled a capital case for which the decision of the California Supreme Court is not final on a pending habeas corpus petition, needs to be aware of certain specific duties and strategies required by The Death Penalty Reform and Savings Act of 2016,1 Proposition 66, enacted by the voters2 on November 8, 2016.3 The Act imposes new duties on capital trial counsel following a judgment of death, will require more prompt discharge of other duties and may even present an opportunity. While the article ...


Birchfield V. North Dakota: Warrantless Breath Tests And The Fourth Amendment, Sara Jane Schlafstein 2017 Duke Law

Birchfield V. North Dakota: Warrantless Breath Tests And The Fourth Amendment, Sara Jane Schlafstein

Duke Journal of Constitutional Law & Public Policy Sidebar

In Birchfield v. North Dakota, the Supreme Court explored warrantless breath tests during DUI stops and their validity under the Fourth Amendment. To determine their constitutionality, the Court adopted a balancing test, weighing the government’s interest in preventing instances of drunk driving with the intrusion on an individual’s privacy. The Court ultimately concluded that warrantless breath tests are constitutional when conducted incident to a lawful DUI arrest. This commentary explores the Court’s reasoning and holding and will argue that the Court was correct in deciding that a warrant is not necessary for conducting a breath test incident ...


Drawing Lines: Racial Gerrymandering In Bethune-Hill V. Virginia Board Of Elections, Scott Reed 2017 Duke Law

Drawing Lines: Racial Gerrymandering In Bethune-Hill V. Virginia Board Of Elections, Scott Reed

Duke Journal of Constitutional Law & Public Policy Sidebar

In Bethune-Hill v. Virginia Board of Elections, the Supreme Court had to decide whether twelve Virginia challenged legislative districts, in which a one-size-fits-all 55% black voting age population floor was imposed, withstood constitutional scrutiny. The Court, though stating that the lower court misapplied precedent, declined to hold that race predominated in the formation of the districts and that strict scrutiny would be triggered, instead remanding to the lower court for reexamination. This commentary argues that the Court missed an opportunity to hold that a 55% BVAP floor prioritized above all else is per se racial predomination, and such a holding ...


May The Best Canon Win: Lockhart V. United States And The Battle Of Statutory Interpretation, Hassan Shaikh 2017 Duke Law

May The Best Canon Win: Lockhart V. United States And The Battle Of Statutory Interpretation, Hassan Shaikh

Duke Journal of Constitutional Law & Public Policy Sidebar

In Lockhart v. United States, the Supreme Court resolved a long-standing circuit split regarding 18 U.S.C. § 2252(b)(2), which triggered a mandatory minimum sentence for recidivists who had previously been convicted under federal or state crimes relating to “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” In expected fashion, the Court relied on the statute’s plain meaning to decide whether Lockhart’s previous crime had triggered the mandatory minimum. However, even with identical approaches to the text, the majority and dissent reached contrary conclusions. This commentary explores how a single ...


On The Categorical Approach To Free Speech – And The Protracted Failure To Delimit The True Threats Exception To The First Amendment, Wayne Batchis 2017 University of Delaware

On The Categorical Approach To Free Speech – And The Protracted Failure To Delimit The True Threats Exception To The First Amendment, Wayne Batchis

Pace Law Review

On June 1, 2015, the Supreme Court decided Elonis v. United States on statutory rather than constitutional grounds. In doing so, it turned away an important opportunity to provide needed clarification of true threats, a category of expression relegated to a lower level of protection by the Court almost a half-century ago. The categorical approach to free speech made its first explicit appearance in Supreme Court case law in 1942. Since that time, the Court has relied heavily on this method of constitutional interpretation, carving out discrete exceptions from the seemingly absolutist mandate of the First Amendment that Congress make ...


Conflict In The Courts: Obscenity Control & First Amendment Freedoms, Father Edward J. Berbysse, S.J. 2017 St. John's University School of Law

Conflict In The Courts: Obscenity Control & First Amendment Freedoms, Father Edward J. Berbysse, S.J.

The Catholic Lawyer

No abstract provided.


The Lost Due Process Doctrines, Paul J. Larkin Jr. 2017 The Catholic University of America, Columbus School of Law

The Lost Due Process Doctrines, Paul J. Larkin Jr.

Catholic University Law Review

Due process jurisprudence has long been dominated by discussion of its procedural requirements and substantive limitations. Through the lens of the Constitution’s Due Process Clause, however, the Supreme Court has also considered the geographic reach and substantive exercise of legal authority, the delegation of law making to private parties, the incorporation doctrine, and the issues of fundamental fairness. These doctrines have existed for some time, but the Supreme Court has never explained how they fit into its “procedural vs. substantive” dichotomy. This article examines these Lost Due Process Doctrines and poses the question of whether they should suffer the ...


Obergefell’S Impact On Functional Families, Raymond C. O'Brien 2017 The Catholic University of America, Columbus School of Law

Obergefell’S Impact On Functional Families, Raymond C. O'Brien

Catholic University Law Review

More than forty percent of children born in America are born to unmarried parents and only half of all cohabitating adults in America are currently married. While many children are born to single parents, others are part of the two-person unmarried cohabiting functional family paradigm. What is the status of these children?

This article examines the changing paradigm of parental status, specifically vis-à-vis homosexual couples with children, and the rights of the non-biological parent after separation. This article examines the changes in law in regards to unmarried parents leading up to the Uniform Parentage Act. It describes the equitable remedies ...


The Private Search Doctrine And The Evolution Of Fourth Amendment Jurisprudence In The Face Of New Technology: A Broad Or Narrow Exception?, Adam A. Bereston 2017 The Catholic University of America, Columbus School of Law

The Private Search Doctrine And The Evolution Of Fourth Amendment Jurisprudence In The Face Of New Technology: A Broad Or Narrow Exception?, Adam A. Bereston

Catholic University Law Review

The advent of new technology has presented courts with unique challenges when analyzing searches and seizures under the Fourth Amendment. Out of necessity, the application of the Fourth Amendment has evolved to address privacy issues stemming from modern technology that could not have been anticipated by the Amendment’s drafters. As part of this evolution, the Supreme Court devised the “private search” doctrine, which upholds the constitutionality of warrantless police searches of items that were previously searched by a private party, so long as the police search does not exceed the scope of the private-party search. However, courts have struggled ...


Adequate Psychiatric Treatment - A Constitutional Right, 2017 St. John's University School of Law

Adequate Psychiatric Treatment - A Constitutional Right

The Catholic Lawyer

No abstract provided.


Wade & Bolton: Fundamental Legal Errors And Dangerous Implications, Robert M. Byrn 2017 St. John's University School of Law

Wade & Bolton: Fundamental Legal Errors And Dangerous Implications, Robert M. Byrn

The Catholic Lawyer

No abstract provided.


Cruel And Unusual Punishment: Of Straps And Strip Cells, Vincent C. Alexander, Neil A. Nowick 2017 St. John's University School of Law

Cruel And Unusual Punishment: Of Straps And Strip Cells, Vincent C. Alexander, Neil A. Nowick

The Catholic Lawyer

No abstract provided.


A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany 2017 Hebrew University of Jerusalem

A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany

International Law Studies

This article discusses one principal challenge to detention without trial of suspected international terrorists—the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One of this article describes the “hardline” position on security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the United Kingdom and the State of Israel), according to which international terrorism suspects can be deprived of their liberty without trial ...


Stubbornness Of Pretexts, Daniel B. Yeager 2017 California Western School of Law

Stubbornness Of Pretexts, Daniel B. Yeager

Daniel B. Yeager

This Article will reflect on (1) how the Whren v. United States failure to acknowledge what counts as a pretext accounts for the residual confusion as to whether or not Whren really has killed off the pretext argument in constitutional criminal procedure, and (2) the extent to which the Court in Sullivan compounded that failure, which I hope to lightly correct here by distinguishing motives from intentions and then by elaborating the role that each plays, or at least should play, in Fourth Amendment jurisprudence.


Overcoming Hiddenness: The Role Of Intentions In Fourth Amendment Analysis, Daniel B. Yeager 2017 California Western School of Law

Overcoming Hiddenness: The Role Of Intentions In Fourth Amendment Analysis, Daniel B. Yeager

Daniel B. Yeager

This Article rehearses a response to the problems posed to and by the Supreme Court's attempts to work out the meaning and operation of the word "search." After commencing Part II by meditating on the notion of privacy, I take up its relation to the antecedent suspicion or knowledge that Fourth-Amendment law requires as a justification for all privacy invasions. From there, I look specifically at that uneasy relation in Supreme Court jurisprudence, which has come to privilege privacy over property as a Fourth Amendment value. From there, Part III reviews the sources or bases that can tell us ...


Puerto Rico And The Netherworld Of Sovereign Debt Restructuring, Robert K. Rasmussen, Mitu Gulati 2017 University of Southern California

Puerto Rico And The Netherworld Of Sovereign Debt Restructuring, Robert K. Rasmussen, Mitu Gulati

University of Southern California Legal Studies Working Paper Series

Puerto Rico has incurred debt well beyond its ability to repay. It attempted to address its fiscal woes through legislation allowing the restructuring of some its debt. The Supreme Court put a stop to this effort, holding that Congress in the Bankruptcy Code barred the Commonwealth from enacting its own restructuring regime. Yet all agreed that the Bankruptcy Code did not provide anything in its place. While Congress quickly enacted PROMESA in an attempt to address the Puerto Rico’s fiscal ills, we explore in this paper whether Congress has the power to bar Puerto Rico from enacting a restructuring ...


The Crushing Of A Dream: Daca, Dapa And The Politics Of Immigration Law Under President Obama, Robert H. Wood 2017 Barry University School of Law

The Crushing Of A Dream: Daca, Dapa And The Politics Of Immigration Law Under President Obama, Robert H. Wood

Barry Law Review

No abstract provided.


Key Legal Issues For Schools: The Ultimate Resource For School Business Officials, Charles J. Russo 2017 University of Dayton

Key Legal Issues For Schools: The Ultimate Resource For School Business Officials, Charles J. Russo

Charles J. Russo

School business officials (SBOs) must, in many respects, serve as all things to all people in their workplaces. Put another way, SBOs must be knowledgeable about a wide range of legal issues ranging from contracts to setting policy to state biding laws let alone constitutional matters involving the rights of students and teachers. Aware of the fact that issues involving the law are at the heart of many of a SBO’s duties, the chapters in this edited book have been written by a diverse array of individuals with experience as educational leaders in schools and/ or who possess significant ...


Justice For Noncitizens: A Case For Reforming The Immigration Legal System, Anna Paden Carson 2017 Washington and Lee University

Justice For Noncitizens: A Case For Reforming The Immigration Legal System, Anna Paden Carson

VA Engage Journal

The immigration legal system exists as a function of the executive branch rather than the judicial branch, and many of the constitutional rights guaranteed in a judicial court do not continue into the immigration legal sphere. Noncitizen defendants in the immigration court system are not guaranteed the same due process rights or right to appointed counsel as United States citizens, which severely limits their chance of a successful outcome. Moreover, while many noncitizens await their trials in these courts, they are often placed in one of the 234 immigration detention facilities across the nation, which further exacerbates the direness of ...


Rx For Population Deconcentration, Judith T. Younger 2017 St. John's University School of Law

Rx For Population Deconcentration, Judith T. Younger

The Catholic Lawyer

No abstract provided.


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