“And The Truth Shall Make You Free”: Schenck, Abrams, And A Hundred Years Of History, 2019 Widener University Delaware Law School
“And The Truth Shall Make You Free”: Schenck, Abrams, And A Hundred Years Of History, Rodney A. Smolla
SMU Law Review
No abstract provided.
Where The Constitution Falls Short: Confession Admissibility And Police Regulation, 2019 Penn State Dickinson Law
Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis
Dickinson Law Review (2017-Present)
A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by …
A Gun To Whose Head? Federalism, Localism, And The Spending Clause, 2019 Penn State Dickinson Law
A Gun To Whose Head? Federalism, Localism, And The Spending Clause, Daniel S. Cohen
Dickinson Law Review (2017-Present)
President Trump’s executive order rescinding federal funds from “sanctuary jurisdictions” has brought a critical, but overlooked, question of constitutional law to the forefront of the political debate: how does the Spending Clause apply to local governments? The purpose of the Spending Clause is to empower the federal government to bargain with the states to enact policies it cannot enact itself. This power, however, is constrained within the confines of federalism. The Supreme Court has sought to restrict the Spending Clause by crafting the Dole-NFIB framework, a test to determine whether a federal grant has compromised federalism. At its …
Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, 2019 Penn State Dickinson Law
Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, Andrew R. Ford
Dickinson Law Review (2017-Present)
Following its decision in Furman v. Georgia, the Supreme Court of the United States has attempted to standardize procedures that states use to subject offenders to the ultimate penalty. In practice, this attempt at standardization has divided capital sentencing into two distinct parts: the death eligibility decision and the death selection decision. The eligibility decision addresses whether the sentencer may impose the death penalty, while the selection decision determines who among that limited subset of eligible offenders is sentenced to death. In Ring v. Arizona, the Court held for the first time that the Sixth Amendment right to …
Taxing Combat, 2019 Barry University School of Law
Taxing Combat, Samuel Kan
Dickinson Law Review (2017-Present)
When you are being shot at or dodging landmines you are in a combat zone. Diplomatic niceties aside, these brave warriors are in danger because of the policies of their Government and we must take care of them. Quite frankly, we must act to insure that we do not have a repeat of what happened in Somalia. In Somalia, the families of the soldiers who lost their lives could not receive the benefits that should have gone to them under the Tax Code because the President never declared it a combat zone.
We don’t know exactly where we’re at in …
Towards A Jurisprudence Of Fashion, 2019 Fordham University School of Law
Towards A Jurisprudence Of Fashion, Susan Scafidi
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Face Off: An Examination Of State Biometric Privacy Statutes & Data Harm Remedies, 2019 Fordham University School of Law
Face Off: An Examination Of State Biometric Privacy Statutes & Data Harm Remedies, Maya E. Rivera
Fordham Intellectual Property, Media and Entertainment Law Journal
As biometric authentication becomes an increasingly popular method of security among consumers, only three states currently have statutes detailing how such data may be collected, used, retained, and released. The Illinois Biometric Information Privacy Act is the only statute of the three that enshrines a private right of action for those who fail to properly handle biometric data. Both the Texas Capture or Use Biometric Identifier Act Information Act and the Washington Biometric Privacy Act allow for state Attorneys General to bring suit on behalf of aggrieved consumers. This Note examines these three statutes in the context of data security …
The Use Of Courts To Protect The Environmental Commons, 2019 University of Colorado Law School
The Use Of Courts To Protect The Environmental Commons, Lakshman Guruswamy
Publications
No abstract provided.
Mens Rea Reform And Its Discontents, 2019 University of Colorado Law School
Mens Rea Reform And Its Discontents, Benjamin Levin
Publications
This Article examines the debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle …
There's Voices In The Night Trying To Be Heard: The Potential Impact Of The Convention On The Rights Of Persons With Disabilities On Domestic Mental Disability Law, 2019 New York Law School
There's Voices In The Night Trying To Be Heard: The Potential Impact Of The Convention On The Rights Of Persons With Disabilities On Domestic Mental Disability Law, Michael L. Perlin, Naomi Weinstein
Articles & Chapters
This paper carefully examines, through a therapeutic jurisprudence framework, the likely impact of the ratification of this UN Convention on society’s sanist attitudes towards persons with mental disabilities. We argue that it is impossible to consider the impact of anti-discrimination law on persons with mental disabilities without a full understanding of how sanism -- an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry -- permeates all aspects of the legal system and the entire fabric of American society.
Notwithstanding nearly …
To Promote Innovation, Congress Should Abolish The Supreme Court Created Exceptions To 35 U.S. Code Sec. 101, 2019 New York Law School
To Promote Innovation, Congress Should Abolish The Supreme Court Created Exceptions To 35 U.S. Code Sec. 101, Shahrokh Falati
Articles & Chapters
No abstract provided.
A Tj Approach To Mental Disability Rights Research: On Sexual Autonomy And Sexual Offending, 2019 New York Law School
A Tj Approach To Mental Disability Rights Research: On Sexual Autonomy And Sexual Offending, Michael L. Perlin, Heather Ellis Cucolo, Alison Lynch
Articles & Chapters
We believe it is impossible to understand the development and the power of therapeutic jurisprudence (TJ) without acknowledging that its roots in mental disability law have continued to expand and flourish over the decades, and that there is no other substantive area of the law in which every aspect – substantive and procedural, civil and criminal, statutory and constitutional. domestic and international – has been weighed and evaluated using a TJ lens. In this chapter, we consider how those roots have shaped the last three decades of research and the implications of what has developed. We look carefully at two …
Temple, Talmud, And Sacrament: Some Christian Thoughts On Halakhah, 2019 William & Mary Law School
Temple, Talmud, And Sacrament: Some Christian Thoughts On Halakhah, Nathan B. Oman
Faculty Publications
No abstract provided.
Legislating Morality: Moral Theory And Turpitudinous Crimes In Immigration Jurisprudence, 2019 St. John's University School of Law
Legislating Morality: Moral Theory And Turpitudinous Crimes In Immigration Jurisprudence, Abel Rodríguez, Jennifer A. Bulcock
Faculty Publications
Congress could have framed the country’s immigration policies in any number of ways. In significant part, it opted to frame them in moral terms. The crime involving moral turpitude is among the most pervasive and pernicious classifications in immigration law. In the Immigration and Nationality Act, it is virtually ubiquitous, appearing everywhere from the deportability and mandatory detention grounds to the inadmissibility and naturalization grounds. In effect, it acts as a gatekeeper for those who wish to enter and remain in the country, obtain lawful permanent residence, travel abroad after admission, or become United States citizens. With limited exceptions, noncitizens …
What Would Justice Brennan Say To Justice Thomas, 2019 American University Washington College of Law
What Would Justice Brennan Say To Justice Thomas, Stephen Wermiel
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Considerations Of History And Purpose In Constitutional Borrowing, 2019 American University Washington College of Law
Considerations Of History And Purpose In Constitutional Borrowing, Robert Tsai
Articles in Law Reviews & Other Academic Journals
This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …
The Post-Alice Jurisprudence Pendulum And Its Effects On Patent Eligible Subject Matter, 2019 Touro University Jacob D. Fuchsberg Law Center
The Post-Alice Jurisprudence Pendulum And Its Effects On Patent Eligible Subject Matter, John Robert Sepúlveda
Touro Law Review
No abstract provided.
Of Hats And Robes: Judicial Review Of Nonadjudicative Article Iii Functions, 2019 South Texas College of Law Houston
Of Hats And Robes: Judicial Review Of Nonadjudicative Article Iii Functions, Jeffrey L. Rensberger
University of Richmond Law Review
We are accustomed to thinking of Article III courts and judges deciding cases and controversies. But, federal judges and courts have historically also engaged in official but nonadjudicative activities. In addition to a history of federal judges serving on nonjudicial commissions, federal judges and the Supreme Court participate in the rulemaking process for the federal procedural and evidentiary rules. Although some argue to the contrary, the Supreme Court has approved such arrangements in the face of separation of powers objections. Since Article III officers and courts perform nonadjudicative duties, the question arises of how federal courts who address a challenge …
Beyond Samuel Moyn's Countermajoritarian Difficulty As A Model Of Global Judicial Review, 2019 Vanderbilt University Law School
Beyond Samuel Moyn's Countermajoritarian Difficulty As A Model Of Global Judicial Review, James T. Gathii
Vanderbilt Journal of Transnational Law
This Article responds to Samuel Moyn's critique of judicial review and his endorsement of judicial modesty as an alternative. By invoking the countermajoritarian difficulty, Moyn argues that judicial overreach has become an unwelcome global phenomenon that should be reexamined and curbed. I reject Moyn's claim that this kind of judicial modesty should define the role of courts for all time. By applying the countermajoritarian difficulty beyond its United States origins, Moyn assumes it is an unproblematic baseline against which to measure the role of courts globally. Moyn's vision says nothing about when it would be appropriate for courts to rule …
Legal Sets, 2019 St. John's University School of Law
Legal Sets, Jeremy N. Sheff
Faculty Publications
In this Article, I propose that the practices of legal reasoning and analysis are helpfully understood as being primarily concerned not with rules or propositions, but with sets. This Article develops a formal model of the role of sets in the practices of legal actors in a common-law system defined by a recursive relationship between cases and rules. In doing so, it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure that governs marginal cases and help organize the available options for resolving such cases …