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Allen V. Milligan: Anticlassification And The Voting Rights Act, Graham Stinnett

Duke Journal of Constitutional Law & Public Policy Sidebar

The "crown jewel" of the Civil Rights Movement, the Voting Rights Act of 1965 has been called "one of the most effective statutes ever enacted." However, in 2013 the Supreme Court famously gutted the Voting Rights Act in Shelby County v. Holder. Nearly a decade later, in Allen v. Milligan, the Court is now signaling that Section 2, the last remaining core provision of the Voting Rights Act, could be on the chopping block. With Milligan, the Court may be preparing to inject race-neutrality into Section 2, which could destroy the vestiges of the onetime "super-statute."

This …

Discretionary Disfunction And Shivers V. United States: Consequences Of Assuming The Intent Of Congress, Emily B. Garza

Texas A&M Law Review

The discretionary function exception is a powerful departure from the Federal Tort Claims Act’s general waiver of sovereign immunity. This exception applies where government employees commit a tort while acting within the discretion of their position. While there has been a lengthy and varying jurisprudential history surrounding the application of the discretionary function exception, neither the Supreme Court nor Congress has addressed whether violations of constitutional rights fall within the scope of a discretionary act.

This lack of clarity proved harmful for individuals like Mackie Shivers in Shivers v. United States because the discretionary function exception swallowed his claim for …

An Imperfect Solution: The Due Process Case For Providing Court-Appointed Interpreters For Pro Se Plaintiffs, Abdullah Z. Khalil

Texas A&M Law Review

A federal law, the Court Interpreters Act, provides litigants with complimentary access to a qualified or professionally certified interpreter in actions instituted by the United States. The majority of pro se civil litigation in federal courts is initiated by the United States, and thus, those pro se litigants who speak little-to-no English need not pay for access to an exceptional interpreter. Indeed, federal courts offer interpreters proficient in a multitude of languages, and the courts work hard to ensure adequate interpretation in proceedings brought by the United States.

However, those limited-English-proficient pro se plaintiffs initiating their own lawsuits face a …

Match Up: Increasing Disclosure Of Facial Recognition Technology With Criminal Discovery Rules, Paget Barranco

Duke Journal of Constitutional Law & Public Policy Sidebar

Facial recognition technology (FRT) is an automated computer tool that compares the image of one face in a target image to one or more images of other faces. Law enforcement at both the federal and state levels increasingly use FRT to identify unknown perpetrators of crimes. FRT has great potential to generate investigative leads and assist in solving crimes, but there are issues with the technology and a lack of transparency about how it is used. Further, law enforcement and prosecutors may not disclose information about the FRT search results that they relied on to identify a suspect, affecting defense …

What A Waste! An Evaluation Of Federal And State Medical And Biohazard Waste Regulations During The Covid-19 Pandemic And Their Impact On Environmental Justice, Samantha Newman

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Covid-19 Vs. Constitution; Limited Government's Unlimited Response, John A. Losurdo

DePaul Business & Commercial Law Journal

No abstract provided.

The "No License, No Chips" Policy: When A Refusal To Deal Becomes Reasonable, Sheng Tong

DePaul Business & Commercial Law Journal

No abstract provided.

The Dark Triad: Private Benefits Of Control, Voting Caps And The Mandatory Takeover Rule, Jorge Brito Pereira

DePaul Business & Commercial Law Journal

No abstract provided.

The Constitution’S Waning Enforceability: Constitutional Torts After Egbert & Vega, Bailey D. Barnes

UC Law Constitutional Quarterly

The 2021 term of the Supreme Court of the United States produced two opinions significantly dampening the future of constitutional tort actions, which are cases brought to remedy a government agent’s deprivation of an individual’s constitutional rights. First, in Egbert v. Boule, the Court refused to extend Bivens liability to an excessive force claim made against a United States Border Patrol Agent. Second, in Vega v. Tekoh, the Court contravened the traditional understanding of the Fifth Amendment’s Self-Incrimination Clause by preventing a § 1983 civil rights action against a sheriff’s deputy who procured an un-Mirandized statement from a criminal suspect. …

Denaturalization And The Negative Effects Of Widespread Insecurity In Citizenship For Naturalized Citizens, Saman Hashemi

UC Law Constitutional Quarterly

No abstract provided.

Contextualizing Corruption: Foreign Financing Bans And Campaign Finance Law, Lori A. Ringhand

Cardozo Law Review

No abstract provided.

Bond Conditions As Fourth Amendment Seizures, Rebecca Laden

Cardozo Law Review

No abstract provided.

Qualified Knowledge: The Case For Considering Actual Knowledge In Qualified Immunity Jurisprudence As It Relates To The First Amendment Right To Record, Carly Laforge

William & Mary Law Review

This Note argues that this particular finding of the Frasier court is both pragmatically and philosophically problematic. By design, the qualified immunity doctrine seeks to shield police officers from civil rights lawsuits. However, prioritizing assumed knowledge over actual knowledge in determining what qualifies as a clearly established constitutional right harms the citizens that law enforcement officers have sworn to protect and serve. While traditional delineations of clearly established rights have involved appeals to precedent, public policy concerns are also important considerations in the qualified immunity analysis. In this way, Frasier is especially concerning in that it prioritizes the total defense …

Higher Law And Lincoln's Antislavery Constitutionalism: What It Means To Say The Civil War Was Fought Over Slavery, Joel A. Rogers

Dissertations, Theses, and Capstone Projects

The US Civil War was fought over slavery. But what do we really mean when we say that? This paper examines that question, first by exploring the idea of “higher law,” which gained tremendous traction in American society starting around 1850. Proponents of the idea claimed that laws such as the Fugitive Slave Act are immoral; that the immorality of such laws is self-evident, and that such immoral laws should be resisted—sometimes even with violence. Meanwhile, opponents of the idea of higher law were not necessarily in favor of slavery, but they opposed the use of extra-Constitutional means to bring …

Qualified Immunity’S Flawed Foundation, Alexander A. Reinert

Articles

Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine—fundamental errors that have never been excavated. First, this Article demonstrates that the Supreme Court’s qualified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction—namely, that statutes in “derogation” of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983’s silence regarding immunity should be taken as an implicit adoption of common …

Supreme Court Cases That Persist: The Japanese American Cases, Louis Fisher

William & Mary Law Review Online

As with any human institution, the United States Supreme Court makes errors that, over a period of time, need correction. By focusing on the Japanese American cases, Hirabayashi (1943) and Korematsu (1944), the record is particularly remarkable. Over many decades the Supreme Court had abundant evidence that the two decisions were defective. It was not until June 26, 2018, in Trump v. Hawaii, that the Supreme Court announced that “Korematsu was gravely wrong the day it was decided.” If Korematsu was that deficient, why did it take the Court seventy-four years to admit it? Moreover, what about Hirabayashi? The decision …

The Trouble With Time Served, Kimberly Kessler Ferzan

BYU Law Review

Every jurisdiction in the United States gives criminal defendants "credit" against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, how ever, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting …

Searches Without Suspicion: Avoiding A Four Million Person Underclass, Tonja Jacobi, Addie Maguire

BYU Law Review

In Samson v. California, the Supreme Court upheld warrantless, suspicionless searches for parolees. That determination was controversial both because suspicionless searches are, by definition, anathema to the Fourth Amendment, and because they arguably undermine parolees’ rehabilitation. Less attention has been given to the fact that the implications of the case were not limited to parolees. The opinion in Samson included half a sentence of dicta that seemingly swept probationers into its analysis, implicating the rights of millions of additional people in the United States. Not only is analogizing parolees and probationers not logically sound because the two groups differ in …

The Federalist And The Fourteenth Amendment — Publius In Antebellum Public Debate 1788–1860, Kurt T. Lash

BYU Law Review

No abstract provided.

Publius’S Protectors Of Liberty: A Still Important Role For States, Adam Reed Moore

BYU Law Review

No abstract provided.

The Constitutional Model Of Mootness, Tyler B. Lindley

BYU Law Review

Article III limits the federal courts to deciding cases and controversies, and this limitation has given rise to the black-letter law of standing, ripeness, and mootness. But the law of mootness presents a puzzle: Over time, the Court has recognized various "exceptions" to ordinary mootness rules, allowing federal courts to hear arguably moot cases. On one hand, the Court consistently asserts that mootness doctrine, including its exceptions, is compelled by the original understanding of Article III. On the other hand, the scholarly consensus is that these exceptions are logically inconsistent with the Court s claims about Article III and that …

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …

Due Process And Equal Protection In Michigan Anishinaabe Courts, Matthew Fletcher

Articles

In 1968, largely because the United States Constitution does not apply to tribal government activity, Congress enacted the Indian Civil Rights Act–a federal law that requires tribal governments to guarantee due process and equal protection to persons under tribal jurisdiction. In 1978, the Supreme Court held that persons seeking to enforce those federal rights may do so in tribal forums only; federal and state courts are unavailable. Moreover, the Court held that tribes may choose to interpret the meanings of “due process” and “equal protection” in line with tribal laws, including customary laws. Since the advent of the self-determination era …

Consequences And The Supreme Court, Aaron Tang

Northwestern University Law Review

May the Supreme Court consider consequences when it decides the hard cases that divide us? The conventional wisdom is that it may not. Scholars have argued, for example, that consequentialism is a paradigmatic “anti-modal” form of reasoning at the Court. And the Court itself has declared that “consequences cannot change our understanding of the law.”

This Article presents evidence of a possible shift in the standard account. Although many kinds of consequentialist arguments remain forbidden, such as naked judicial efforts to maximize social utility, a particular form of consequentialism is now surprisingly common when the Supreme Court confronts hard cases. …

The Misunderstood History Of Textualism, Tara Leigh Grove

Northwestern University Law Review

This Article challenges widespread assumptions about the history of textualism. Jurists and scholars have sought for decades to distinguish “modern textualism” from the so-called “plain meaning school” of the late nineteenth and early twentieth centuries—an approach that both textualists and non-textualists alike have long viewed as improperly “literal” and “wooden.” This Article shows that this conventional historical account is incorrect. Based on a study of statutory cases from 1789 to 1945 that use the term “plain meaning” or similar terms, this Article reveals that, under the actual plain meaning approach, the Supreme Court did not ignore context but looked to …

The Counterdemocratic Difficulty, Aziz Z. Huq

Northwestern University Law Review

Since the 2020 elections, debate about the Supreme Court’s relationship with the mechanisms of national democracy has intensified. One important thread of that debate focuses critically on the possibility of a judicial decision flipping a presidential election or thwarting the will of national majorities respecting progressive legislation, and pushes concerns about the Court’s effect on national democracy. A narrow focus on specific interventions, however, does not exhaust the subtle and consequential ways in which the Court influences whether and how the American democratic system thrives or fails. A narrow focus is partial because it construes democracy as merely the aggregation …

On Pope Benedict, Science, Faith, And His Legacy, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Rights Without A Remedy: Detained Immigrants And Unlawful Conditions Of Confinement, Brandon Galli-Graves

BYU Law Review

No abstract provided.

Frederick Douglass And The Original Originalists, Bradley Rebeiro

BYU Law Review

Constitutional scholars incessantly grapple over the significance of the Constitution’s original meaning. More specifically, they are preoccupied with, on the one hand, what that meaning is (if such meaning exists) and, on the other hand, the exact nature of that meaning’s authority (if any) over the Constitution and its interpreters. But this debate is hardly novel. In fact, one of the most compelling voices in U.S. history was immersed in similar debates and, out of the constitutional sparring of his time, forged an arresting theory of constitutional interpretation. Frederick Douglass, once a fierce opponent of the U.S. Constitution, evolved into …

Dampak Ketiadaan Perda Penetapan Ukl/Upl Pada Kepastian Hukum Dalam Pelaksanaan Desentralisasi Di Bidang Lingkungan Hidup, Puteri Amirillis

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The case of mangrove damage on the South Coast of West Sumatra in 2016-2017 where the defendant was a Deputy Regent who owned land in the Nagari Mandeh area, Pesisir Selatan, West Sumatra. The land was built without an environmental permit. The absence of an environmental permit has emerged because of the mangrove damage. This paper focuses on the absence of environmental permits because there is no stipulation on the types of businesses that are required to have UKL / UPL which should be stipulated by a regional regulation (Perda) by the Regional Government of the Pesisir Selatan Regency. This …