Open Access. Powered by Scholars. Published by Universities.®

Constitutional Law Commons

Open Access. Powered by Scholars. Published by Universities.®

22,065 Full-Text Articles 11,229 Authors 8,759,025 Downloads 203 Institutions

All Articles in Constitutional Law

Faceted Search

22,065 full-text articles. Page 3 of 560.

Identifying And Preventing Improper Prosecutorial Comment In Closing Argument, Robert W. Clifford 2018 University of Maine School of Law

Identifying And Preventing Improper Prosecutorial Comment In Closing Argument, Robert W. Clifford

Maine Law Review

In recent years, several decisions of the Maine Supreme Judicial Court sitting as the Law Court have addressed the comments of prosecutors in final argument before criminal juries. Three of those decisions in particular have caused concern among prosecutors and have stirred discussion in the Maine legal community. In vacating convictions in State v. Steen, State v. Casella, and State v. Tripp, the Law Court focused on the language used by the prosecutors during closing argument and concluded that those prosecutors impermissibly expressed personal opinion concerning the credibility of the defendants, or witnesses called by the defendants. This Article examines ...


Maine's Sex Offender Registration And Notification Act: Wise Or Wicked?, James A. Billings, Crystal L. Bulges University of Maine School of Law 2018 University of Maine School of Law

Maine's Sex Offender Registration And Notification Act: Wise Or Wicked?, James A. Billings, Crystal L. Bulges University Of Maine School Of Law

Maine Law Review

The purpose of this Comment is to discuss both the constitutionality and advisability of such sex offender notification statutes with specific reference to Maine's Sex Offender Registration and Notification Act (the SORNA). This Comment will discuss, independent of their constitutionality, the advisability of such statutes on a policy level. It is the Authors' thesis that the SORNA will survive constitutional challenges, but as a means of alleviating the problem of sex offender recidivism in this country, the SORNA and similar statutes fail both in theory and in practice. Alternative approaches based on interdisciplinary study will be suggested.


Hall V. Florida: The Supreme Court’S Guidance In Implementing Atkins, James W. Ellis 2018 Selected Works

Hall V. Florida: The Supreme Court’S Guidance In Implementing Atkins, James W. Ellis

James W. Ellis

No abstract provided.


Justiciability, Access To Justice And The Development Of Constitutional Law In Canada, Lorne Sossin, Gerard J. Kennedy 2018 Osgoode Hall Law School of York University

Justiciability, Access To Justice And The Development Of Constitutional Law In Canada, Lorne Sossin, Gerard J. Kennedy

Lorne Sossin

Concentrating on Canadian experience, specifically litigation under the Canadian Charter of Rights and Freedoms (the ‘Charter’), this article seeks to reconcile the access to justice benefits of summary procedures with the government litigant’s duty to act in the public interest (or as a ‘model litigant’) and uphold the rule of law. Though acknowledging the benefits that can result from the use of summary procedures to end litigation, the authors observe that compliance with strict requirements in procedural law are frequently dispensed with in the Charter context. In fact, summary procedures can have a devastating effect on the development of ...


The Tradition Of Sustantive Judicial Review: A Case Study Of Continuity In Constitutional Jurisprudence, David M. Gold 2018 University of Maine School of Law

The Tradition Of Sustantive Judicial Review: A Case Study Of Continuity In Constitutional Jurisprudence, David M. Gold

Maine Law Review

Until the 1970s, scholars routinely asserted that courts in the late nineteenth century initiated a radical reinterpretation of due process of law in their attempt to stem an onrushing tide of legislation designed to regulate business activity. This protection-of-business theory of due process development originated with the efforts of socialist and progressive commentators of the early twentieth century to discredit what they saw as a “revolutionary” transformation of due process from a term of “nominal significance in American constitutional law” into a bulwark of property. Progressive intellectuals assailed the judiciary in similar terms. Yale University president Arthur T. Hadley, an ...


The Law Of Taking Elsewhere And, One Suspects, In Maine, Orlando E. Delogu 2018 University of Maine School of Law

The Law Of Taking Elsewhere And, One Suspects, In Maine, Orlando E. Delogu

Maine Law Review

The debate as to the meaning of the Taking Clause in the Fifth Amendment of the United States Constitution seems unending. This short, almost cryptic constitutional provision, “nor shall private property be taken for public use, without just compensation,” has over the years given rise to both court challenges and philosophic debate aimed at parsing out the meaning and parameters of this language. As the need for regulatory controls (imposed by every level of government) has increased, the number of challenges and the stridency of the debate has also increased. Moreover, these challenges have increasingly found their way to the ...


When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler 2018 University of Maine School of Law

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Maine Law Review

In his well-known article, Property, Speech, and the Politics of Distrust, Professor Richard Epstein—a leading contemporary voice in the fields of property theory and constitutional law—makes a simple but compelling argument. There has been, he argues, a mistake in “the dominant mode of thinking about property rights during the past fifty years [that] has been ... of constitutional dimensions.” This mistake, in Professor Epstein's view, is the refusal of the federal courts to accord to individual property rights the same kind of protection from government regulation that is accorded to other constitutional rights. Using free speech as his ...


Mixed Messages: An Analysis Of The Conflicting Standards Used By The United States Circuit Courts Of Appeals When Awarding The Compensatory Education For A Violation Of The Individuals With Disabilities Education Act, James C. Schwellenbach 2018 University of Maine School of Law

Mixed Messages: An Analysis Of The Conflicting Standards Used By The United States Circuit Courts Of Appeals When Awarding The Compensatory Education For A Violation Of The Individuals With Disabilities Education Act, James C. Schwellenbach

Maine Law Review

With the passage of the Education for All Handicapped Children Act (EAHCA) of 1975, now titled the Individuals with Disabilities Education Act (IDEA or the Act), each child with a disability was guaranteed the right to a free and appropriate public education. It fell to the public schools to provide that free and appropriate education to students with disabilities, many of whom had been denied access to public schools prior to that time. It was inevitable that parents would disagree with their local school district, or the state educational agency, as to whether their child was being provided the kind ...


The Maine Civil Rights Act: History, Enforcement, Application, And Analysis, J. Christopher Parr 2018 University of Maine School of Law

The Maine Civil Rights Act: History, Enforcement, Application, And Analysis, J. Christopher Parr

Maine Law Review

Since the passage of the “Maine Civil Rights Act” (MCRA, Act) in 1989, the Maine Department of the Attorney General has made enforcement of that civil “hate crime” law one of its highest priorities. According to one statistic, “more than 125 people have been prosecuted in Maine's civil courts on hate crime charges since 1994,” and only two of those actions have been lost by the State. The Attorney General at the time of this writing, Andrew Ketterer, has stated that he takes the perpetration of hate crimes seriously, and that it has been important to him “that the ...


State Immunity Doctrine: Demoting The Patent System, Charles C. Wong 2018 University of Maine School of Law

State Immunity Doctrine: Demoting The Patent System, Charles C. Wong

Maine Law Review

Congress enacted the Patent Remedy Clarification Act (PRCA) in 1992, which authorized patent holders to sue a state for patent infringement in federal court. The PRCA clearly expressed Congress's intent to abrogate Eleventh Amendment state sovereign immunity as required by Atascadero State Hospital v. Scanlon. In 1996, Seminole Tribe v. Florida changed the landscape of congressional power to abrogate state immunity by declaring Congress may do so only if acting pursuant to its powers under section 5 of the Fourteenth Amendment. In his dissent, Justice Stevens forecasted that the Seminole Tribe decision would effectively leave patent holders injured by ...


Sovereign Immunity And The Crisis Of Constitutional Absolutism: Interpreting The Eleventh Amendment After Alden V. Maine, Matthew Mustokoff 2018 University of Maine School of Law

Sovereign Immunity And The Crisis Of Constitutional Absolutism: Interpreting The Eleventh Amendment After Alden V. Maine, Matthew Mustokoff

Maine Law Review

Toward the end of her article, The History of Mainstream Legal Thought, Elizabeth Mensch identifies federalism as a dominant theme in recent Supreme Court decisions. The Court's focus on questions of federalism, however, cannot be directly attributed to the emergence of any specific social or political issues dividing champions of strong central government from defenders of state sovereignty. Instead, the Court's scrutiny seems to have arisen from a perplexing, frustrating, and self-contradictory body of Eleventh Amendment jurisprudence and the perpetual call for judicial clarification it has produced. While the text of the Eleventh Amendment is unambiguous—its language ...


Where The Right Went Wrong In Southworth: Underestimating The Power Of The Marketplace, Clay Calvery 2018 University of Maine School of Law

Where The Right Went Wrong In Southworth: Underestimating The Power Of The Marketplace, Clay Calvery

Maine Law Review

When the United States Supreme Court unanimously declared in March 2000 that mandatory student activity fees at public universities do not offend the First Amendment if distributed in viewpoint-neutral fashion, the decision dealt a severe blow to the conservative movement that had both supported the challenge to fee assessments and long railed against a perceived leftist/liberal bias in higher education. The New York Times, acknowledging the political implications of the case, hailed the Court's decision in Board of Regents v. Southworth as “a surprisingly broad and decisive victory for universities on an ideologically charged issue that has roiled ...


Life In No Trump: Property And Speech Under The Constitution, Richard A. Esptein 2018 University of Maine School of Law

Life In No Trump: Property And Speech Under The Constitution, Richard A. Esptein

Maine Law Review

The editors of the Maine Law Review have been kind enough to offer me the opportunity to respond to Laura Underkuffler's criticism of my work in her recent Godfrey Lecture, “When Should Rights ‘Trump’? An Examination of Speech and Property,” which appears in the preceding issue. In my earlier writings on constitutional law, more specifically, in my paper, Property, Speech and the Politics of Distrust, I took the position that modern Supreme Court jurisprudence had taken a turn for the worse insofar as it used different standards of review in passing on the constitutionality of legislation. The current position ...


Surrogate Mothers, Gestational Carriers, And A Pragmatic Adaptation Of The Uniform Parentage Act Of 2000, John C. Sheldon 2018 University of Maine School of Law

Surrogate Mothers, Gestational Carriers, And A Pragmatic Adaptation Of The Uniform Parentage Act Of 2000, John C. Sheldon

Maine Law Review

Recent medical advances that permit human conception without intercourse, in combination with sociological changes in our country, dramatically enlarge the population of adults who can produce or raise children. The legal price for this broadening of opportunity, however, is a diminishment of certainty: We are no longer sure whom we should identify as a child's parents. These are important questions, of course, because ready answers will quickly dampen disputes about custody and will immediately establish support obligations and the children's eligibility for health insurance, for inheritance, for Workers' Compensation benefits, and for Social Security survivor benefits. But as ...


Hate Speech - The United States Versus The Rest Of The World?, Kevin Boyle 2018 University of Maine School of Law

Hate Speech - The United States Versus The Rest Of The World?, Kevin Boyle

Maine Law Review

The search for a commonly agreed upon international legal understanding of the meaning of free speech or freedom of expression, as an individual human right, was a major international preoccupation from the 1940s to the 1980s. During the Cold War it was, of course, also a highly ideological debate. There were three positions, broadly speaking: the Soviet Union and its allies, who had little enthusiasm for the idea at all; the United States, which believed in it—many thought—too much; and the rest, the other Western democracies and developing countries, who tried to hold the middle ground. These contrasting ...


Creating Mischief: The Tenth Circuit Declares The Sec’S Administrative Law Judges Unconstitutional In Bandimere V. Securities Exchange Commission, Casey M. Olesen 2018 University of Maine School of Law

Creating Mischief: The Tenth Circuit Declares The Sec’S Administrative Law Judges Unconstitutional In Bandimere V. Securities Exchange Commission, Casey M. Olesen

Maine Law Review

Since the passage of the APA, administrative agencies’ use of Administrative Law Judges (ALJs) to preside over hearings has exploded, and now far outpaces the number trials conducted before federal judges. The Securities and Exchange Commission (SEC) is one such agency that heavily utilizes ALJs to conduct their hearings. Recently, following an apparent higher percentage of SEC wins before their own ALJs as compared to before federal judges, a new constitutional challenge on the basis of the Appointments Clause has been brought before several circuits; that the SEC’s ALJs are inferior officers of the SEC, not employees, and therefore ...


Overawed And Overwhelmed: Juvenile Miranda Incomprehension, Sara P. Cressey 2018 University of Maine School of Law

Overawed And Overwhelmed: Juvenile Miranda Incomprehension, Sara P. Cressey

Maine Law Review

Each year approximately one million juveniles in the United States are arrested and read the Miranda warnings. Though studies have shown that the majority of those children do not understand the warnings, most of them must decide alone whether to waive their constitutional rights— and nearly all ultimately make that choice without the help of an attorney. The Supreme Court has recognized that children differ from adults in critical ways, and those differences have important implications for juveniles’ ability to meaningfully waive their Miranda rights. To ensure that juveniles’ constitutional rights are protected, the Supreme Court should take up the ...


“Frankly Unthinkable”: The Constitutional Failings Of President Trump’S Proposed Muslim Registry, A. Reid Monroe-Sheridan 2018 University of Maine School of Law

“Frankly Unthinkable”: The Constitutional Failings Of President Trump’S Proposed Muslim Registry, A. Reid Monroe-Sheridan

Maine Law Review

On several occasions during the 2016 presidential campaign, Donald Trump endorsed the creation of a mandatory government registry for Muslims in the United States— not just visitors from abroad, but American citizens as well. This astonishing proposal has received little attention in legal scholarship to date, even though Trump has refused to renounce the idea following his election to the presidency. In this Article, I attempt to address President Trump’ s proposal in several ways. First, I aim to provide a thorough analysis demonstrating unequivocally that such a “ Muslim registry,” with the characteristics President Trump has endorsed, would violate the ...


Waiting For Justice, Jeffrey Bellin 2018 William & Mary Law School

Waiting For Justice, Jeffrey Bellin

Popular Media

One man’s seven-year wait for a trial reveals the ways mandatory minimums distort our courts.


The Affordable Care Act And The Chronic Challenge Of Cost Control, Isaac D. Buck 2018 University of St. Thomas, Minnesota

The Affordable Care Act And The Chronic Challenge Of Cost Control, Isaac D. Buck

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Digital Commons powered by bepress