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The Death Penalty: A Dialogue On Morality And The Law: Remarks By Jeanne Bishop, Jeanne Bishop 2019 University of St. Thomas, Minnesota

The Death Penalty: A Dialogue On Morality And The Law: Remarks By Jeanne Bishop, Jeanne Bishop

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Drugs, Dignity And Danger: Human Dignity As A Constitutional Constraint To Limit Overcriminalization, Michal Buchhandler-Raphael 2019 Washington and Lee University School of Law

Drugs, Dignity And Danger: Human Dignity As A Constitutional Constraint To Limit Overcriminalization, Michal Buchhandler-Raphael

Michal Buchhandler-Raphael

This Article proposes a constitutional constraint to limit criminalization of victimless crimes and, particularly, to alleviate the pressures on the criminal justice system emanating from its continuous “war on drugs.” To accomplish this goal, the Article explores the concept of human dignity, a fundamental right yet to be invoked in the context of substantive criminal law. The U.S. Supreme Court’s jurisprudence invokes conflicting accounts of human dignity: liberty as dignity, on the one hand, and communitarian virtue as dignity, on the other. However, the Court has not yet developed a workable mechanism to reconcile these competing concepts in ...


The Court Can’T Even Handle Me Right Now: The Arpaio Pardon And Its Effect On The Scope Of Presidential Pardons, Tyler Brown 2019 Pepperdine School of Law

The Court Can’T Even Handle Me Right Now: The Arpaio Pardon And Its Effect On The Scope Of Presidential Pardons, Tyler Brown

Pepperdine Law Review

The Constitution grants the president the power to pardon individuals for offenses against the United States. Courts have interpreted this power broadly, and the American public has historically accepted its use, even in the face of several controversial pardons over the last five decades. However, after President Trump pardoned Joe Arpaio—a former Arizona sheriff who was held in criminal contempt of court for continuing to illegally detain suspected undocumented immigrants—scholars, activists, and political figures questioned whether this pardon was unconstitutional. This Comment discusses the Court’s interpretation of the pardoning power, controversial pardons in modern history, and the ...


Habeas Corpus In The Age Of Guantánamo, Cary Federman 2019 Montclair State University

Habeas Corpus In The Age Of Guantánamo, Cary Federman

Cary Federman

The purpose of the article is to examine the meaning of habeas corpus in the age of the war on terror and the detention camps at Guantanamo Bay. Since the war on terror was declared in 2001, the writ has been invoked from quarters not normally considered within the federal courts’ domain. In this article, I set out to do two things: first, I provide an overview of the writ’s history in the United States and explain its connection to federalism and unlawful executive detention. I then set out to bridge the two meanings of habeas corpus. Second, then ...


Symposium: 50 Years With The 25th Amendment: Celebrating The Presidential Inability Provisions Of The Twenty-Fifth Amendment, Joel K. Goldstein 2019 The University of Akron

Symposium: 50 Years With The 25th Amendment: Celebrating The Presidential Inability Provisions Of The Twenty-Fifth Amendment, Joel K. Goldstein

ConLawNOW

The presidential inability provisions of the Twenty-fifth Amendment to the United States Constitution represent an important contribution to ensuring presidential continuity. The framers of the Amendment responded in a thoughtful and effective way to a series of problems which history had disclosed which had made past officials reluctant to transfer presidential powers even from clearly disabled presidents. Adoption of the Amendment represented an impressive legislative accomplishment. The presidential inability provisions provide clear, workable and reasonable procedures which allow government officials to handle a range of scenarios involving presidential incapacity.


Fosta: A Hostile Law With A Human Cost, Lura Chamberlain 2019 Fordham University School of Law

Fosta: A Hostile Law With A Human Cost, Lura Chamberlain

Fordham Law Review

The Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”) rescinded legal immunity for websites that intentionally host user-generated advertisements for sex trafficking. However, Congress’s mechanism of choice to protect sex-trafficking victims has faced critique and backlash from advocates for those involved in commercial sex, who argue that FOSTA’s broad legislative language does far more to harm sex workers—a group distinct from sex-trafficking victims—than it does to end sex trafficking, chilling significant protected speech in the process. These critics posit that FOSTA’s results toward eradicating sex trafficking have been negligible and ...


All Watched Over By Machines Of Loving Grace: Border Searches Of Electronic Devices In The Digital Age, Sean O'Grady 2019 Fordham University School of Law

All Watched Over By Machines Of Loving Grace: Border Searches Of Electronic Devices In The Digital Age, Sean O'Grady

Fordham Law Review

The border search exception to the Fourth Amendment has historically given the U.S. government the right to conduct suspicionless searches of the belongings of any individual crossing the border. The federal government relies on the border search exception to search and detain travelers’ electronic devices at the border without a warrant or individualized suspicion. The government’s justification for suspicionless searches of electronic devices under the traditional border search exception for travelers’ property has recently been called into question in a series of federal court decisions. In March 2013, the Ninth Circuit in United States v. Cotterman became the ...


Dignity And Social Meaning: Obergefell, Windsor, And Lawrence As Constitutional Dialogue, Steve Sanders 2019 Indiana University Maurer School of Law

Dignity And Social Meaning: Obergefell, Windsor, And Lawrence As Constitutional Dialogue, Steve Sanders

Fordham Law Review

The U.S. Supreme Court’s three most important gay and lesbian rights decisions—Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas—are united by the principle that gays and lesbians are entitled to dignity. Beyond their tangible consequences, the common constitutional evil of state bans on same-sex marriage, the federal Defense of Marriage Act, and sodomy laws was that they imposed dignitary harm. This Article explores how the gay and lesbian dignity cases exemplify the process by which constitutional law emerges from a social and cultural dialogue in which the Supreme Court actively participates. In doing ...


U.S. Citizens Detained And Deported? A Test Of The Great Writ's Reach In Protecting Due Process Rights In Removal Proceedings, Caroline Holliday 2019 Boston College Law School

U.S. Citizens Detained And Deported? A Test Of The Great Writ's Reach In Protecting Due Process Rights In Removal Proceedings, Caroline Holliday

Boston College Law Review

Every year, the U.S. government unlawfully detains a significant number of U.S. citizens and places them in immigration removal proceedings. Before the United States Court of Appeals for the Tenth Circuit’s 2018 decision in Gonzalez-Alarcon v. Macias, four circuits had held that an individual in removal proceedings with a valid claim to U.S. citizenship need not exhaust administrative remedies before the claim could be subject to judicial review. With its decision in Gonzalez-Alarcon, the Tenth Circuit joined the majority of circuits that have ruled on this issue and asserted the right of such an individual to ...


Customs, Immigration, And Rights: Constitutional Limits On Electronic Border Searches, Laura K. Donohue 2019 Georgetown University Law Center

Customs, Immigration, And Rights: Constitutional Limits On Electronic Border Searches, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of ...


Originalism Versus Living Constitutionalism: The Conceptual Structure Of The Great Debate, Lawrence B. Solum 2019 Northwestern Pritzker School of Law

Originalism Versus Living Constitutionalism: The Conceptual Structure Of The Great Debate, Lawrence B. Solum

Northwestern University Law Review

The great debate between originalism and living constitutionalism ought to focus on the merits, including normative arguments for and against various forms of each theory. Frequently, however, discussion turns to disputes about definitions and concepts. This Essay investigates the conceptual structure of the great debate. It lays out a variety of issues that arise when theorists attempt to define “originalism” and “living constitutionalism” and proposes criteria for settling definitional disputes.


Originalism And Structural Argument, Thomas B. Colby 2019 Northwestern Pritzker School of Law

Originalism And Structural Argument, Thomas B. Colby

Northwestern University Law Review

The “new originalism” is all about the text of the Constitution. Originalists insist that the whole point of originalism is to respect and follow the original meaning of the text, and that originalism derives its legitimacy from its unwavering focus on the text alone as the sole basis of higher law. And yet, many leading Supreme Court decisions in matters of great importance to conservatives—in opinions authored and joined by originalist judges, and often praised by originalist scholars—are seemingly not grounded in the constitutional text at all. They rest instead on abstract structural argument: on freestanding principles of ...


Originalism And A Forgotten Conflict Over Martial Law, Bernadette Meyler 2019 Northwestern Pritzker School of Law

Originalism And A Forgotten Conflict Over Martial Law, Bernadette Meyler

Northwestern University Law Review

This Symposium Essay asks what a largely forgotten conflict over habeas corpus and martial law in mid-eighteenth-century New York can tell us about originalist methods of constitutional interpretation. The episode, which involved Abraham Yates, Jr.—later a prominent Antifederalist—as well as Lord Loudoun, the commander of the British forces in America, and New York Acting Governor James De Lancey, furnishes insights into debates about martial law prior to the Founding and indicates that they may have bearing on originalist interpretations of the Suspension Clause. It also demonstrates how the British imperial context in which the American colonies were situated ...


Unifying Original Intent And Original Public Meaning, John O. McGinnis, Michael B. Rappaport 2019 Northwestern Pritzker School of Law

Unifying Original Intent And Original Public Meaning, John O. Mcginnis, Michael B. Rappaport

Northwestern University Law Review

Original intent and original public meaning are generally thought to be opposing camps within originalism. Both theories assert that that the meaning of a constitutional provision was fixed at the time it was enacted. But they disagree fundamentally on the nature of interpretation. Original intent asserts that the meaning sought is that intended by the Constitution’s enactors. Original public meaning asserts that the meaning sought is that revealed by the text as reasonably understood by a well-informed reader at the time of the provision’s enactment.

In this Essay, we unite these two conflicting principles of originalism under the ...


Originalism And James Bradley Thayer, Steven G. Calabresi 2019 Northwestern Pritzker School of Law

Originalism And James Bradley Thayer, Steven G. Calabresi

Northwestern University Law Review

This Essay provides an originalist appraisal of Professor James Bradley Thayer’s famous book on The Origin and Scope of the American Doctrine of Constitutional Law. I critique Professor Thayer’s thesis on multiple levels, pointing out important aspects of the original understanding that the Framers would have had of the meaning and origins of the U.S. Constitution, as well as disputing Professor Thayer’s discussion of the history of American judicial review from 1790 to the publication of his book in 1893. I conclude that no person can be both an originalist and a Thayerian. The two theories ...


Grounding Originalism, William Baude, Stephen E. Sachs 2019 Northwestern Pritzker School of Law

Grounding Originalism, William Baude, Stephen E. Sachs

Northwestern University Law Review

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to ...


Brief For Professor Kent Greenfield As Amicus Curiae In Support Of Respondents, State Of Washington Vs. Arlene's Flowers And Ingersoll Vs. Arlene's Flowers, Kent Greenfield 2019 Boston College Law School

Brief For Professor Kent Greenfield As Amicus Curiae In Support Of Respondents, State Of Washington Vs. Arlene's Flowers And Ingersoll Vs. Arlene's Flowers, Kent Greenfield

Kent Greenfield

This amicus curiae brief addresses a fundamental state-law premise of Appellants’ constitutional claims that has gone largely unexplored in the prior briefing: whether Arlene’s Flowers, a Washington for-profit corporation, may obtain an exemption from generally applicable laws based on the religious beliefs of a shareholder, Mrs. Stutzman. Citing the U.S. Supreme Court’s decisions in Burwell v. Hobby Lobby Stores and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Appellants assert that “Arlene’s free-exercise rights are synonymous with Mrs. Stutzman’s.” Those two cases, however, had nothing to do with Washington corporate law and took no stance ...


The Constitution As Poetry, Samuel J. Levine 2019 Touro Law Center

The Constitution As Poetry, Samuel J. Levine

Samuel J. Levine

Building upon a body of scholarship that compares constitutional interpretation to biblical and literary interpretation, and relying on an insight from a prominent nineteenth century rabbinic scholar, this Article briefly explores similarities in the interpretation of the Torah—the text of the Five Books of Moses—and the United States Constitution. Specifically, this Article draws upon Rabbi Naftali Zvi Yehudah Berlin’s (“Netziv”) intriguing suggestion that the interpretation of the text of the Torah parallels the interpretation of poetry. According to Netziv, this parallel accounts for the practice of interpreting the Torah expansively in ways that derive substantive legal rules ...


To Be Physically Present Or Not To Be Physically Present: The Use Of Videoconferences During Felony Proceedings, Meaghan Annett 2019 Boston College Law School

To Be Physically Present Or Not To Be Physically Present: The Use Of Videoconferences During Felony Proceedings, Meaghan Annett

Boston College Law Review

In April 26, 2018, the United States Court of Appeals for the Seventh Circuit held, in United States v. Bethea, that a felony defendant could not affirmatively waive his right to be physically present in the courtroom, despite requesting to appear via videoconference during his combined plea and sentencing hearing. Bethea represented a matter of first impression among the federal circuit courts. This Comment argues that the Seventh Circuit’s decision is in line with the decisions its sister circuits regarding similar questions that strictly interpreted the plain text of Rule 43 of the Federal Rules of Criminal Procedure. This ...


Banning Solitary For Prisoners With Mental Illness: The Blurred Line Between Physical And Psychological Harm, Rosalind Dillon 2019 Northwestern Pritzker School of Law

Banning Solitary For Prisoners With Mental Illness: The Blurred Line Between Physical And Psychological Harm, Rosalind Dillon

Northwestern Journal of Law & Social Policy

No abstract provided.


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