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Twombly In Context: Why Federal Rule Of Civil Procedure 4(B) Is Unconstitutional, E. Donald Elliott

Florida Law Review

Rule 4(b) of the Federal Rules of Civil Procedure delegates to private parties state authority to compel a person to appear and answer civil charges in court without any preliminary state review or screening for reasonableness. This is argued to be unconstitutional as a unreasonable seizure of the person, a deprivation of private property without due process, and a standardless delegation of state power to a private party with a financial interest.

The history of the writ of summons is reviewed. From the Founding until 1938, federal courts reviewed the grounds proposed for suit prior to service of a summons …

Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein

Touro Law Review

The last Term of the Supreme Court addressed the constitutionally protected rights of criminal defendants not only at trial but at the post-conviction stage as well. The Court dealt with the defendant's rights to a speedy trial and effective assistance of counsel in Vermont v. Brillon; the claim was that these constitutional protections were substantially frustrated by underfunded public defender offices, thereby leaving the defendant improperly incarcerated for three years. The Court also considered a case wherein the State had utilized a jailhouse snitch to elicit inculpatory statements from a defendant in violation of his Sixth Amendment right to counsel. …

The October 2008 Term: First Amendment And Then Some, Burt Neuborne

Touro Law Review

Liberals must acknowledge a dirty little secret about American constitutional law; a secret that the Warren Court made apparent, though it had existed from the day John Marshall asserted the power of judicial review in a Constitution that says nothing about it. The secret is that there is no serious theory explaining or justifying what courts actually do when they strike down a statute as unconstitutional.

The Warren years were enormously important in moving the country forward. I do not know what we would have done without the wisdom and courage of the Court. But when you start looking for …

New York’S Grant Of Greater Fifth Amendment Rights To Sexual Predators In Somta Proceedings - New York V. Suggs, Lina R. Carbuccia

Touro Law Review

No abstract provided.

A Battle Between Law And Society In Micronesia: An Example Of Originalism Gone Awry, Brian Z. Tamanaha

Washington International Law Journal

Two conceptions of the relationship between law and society appear to compete: the idea that law mirrors society and the notion that a gap exists between law and society. Both ideas have some truth—law is an imperfect mirror of society. For various reasons, law and society can fall out of sync or even come into conflict. The 1975 Constitutional Convention, which led to the formation of the Federated States of Micronesia (“FSM”), marked the beginning of a battle between that society and its legal institutions. The Constitution’s framers strove to preserve traditional Micronesian culture by ensuring it a respected place …

Sexing Harris: The Law And Politics Of Defunding Planned Parenthood, Mary Ziegler

Scholarly Publications

The movement to defund Planned Parenthood has opened a new front in the abortion wars. At the state and national level, anti-abortion organizations have campaigned successfully for new legal limitations on Medicaid or Title X reimbursement for Planned Parenthood. Significantly, legal restrictions reach not only abortion but also other services like contraception and cancer screenings. North Carolina, Wisconsin, and Indiana are among the states to have introduced such bans, and the U.S. House of Representatives approved one before the proposal died in the Senate in April 2011.

At first, the novelty of the movement seems to lie in its open …

Government May Not Speak Out-Of-Turn, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

Johanns v. Livestock Marketing Association5 was about whether government could compel individual beef producers to pay for general beef advertising credited to "America's Beef Producers;" even if they disagreed with the message and wanted to spend their advertising money to distinguish their certified Angus or Hereford beef. That "compelled subsidy" case became the unlikely authority for a doctrine invented in Pleasant Grove City, Utah v. Summum6 that government could discriminate, based on viewpoint, on a subject for which it had no power to act. Each case has been criticized in its own right, but the attempt to make Johanns precedent …

Adaptable Due Process, Jason Parkin

Elisabeth Haub School of Law Faculty Publications

The requirements of procedural due process must adapt to our constantly changing world. Over thirty years have passed since the Supreme Court in Goldberg v. Kelly and Mathews v. Eldridge adopted what appears to be a dynamic, fact-intensive approach to determining the procedures required by the Due Process Clause. Federal, state, and local government agencies responded by establishing new procedural safeguards, many of which are virtually identical to those in use today. Yet, for public benefits programs such as welfare, the intervening decades have brought striking changes. The 1996 federal welfare law created new and powerful incentives to trim the …

Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan

Georgetown Law Faculty Publications and Other Works

A significant and growing portion of the United States population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. …

Electronic Discovery And The Constitution: Inaccessible Justice, Jennifer M. Smith

Journal Publications

Computers are the cynosure of American society. As a result, most information is stored electronically and only a small amount of information ever becomes a paper document. This explosion of electronically stored information has affected every aspect of society, including the court system. Litigation is drastically different than a few years ago due to this onset of electronically stored information. The discovery of electronically stored information in litigation has become known as electronic discovery. For many, electronic discovery is expensive and complicated, and thus, litigants are settling frivolous cases to avoid the costs and complexities of engaging in discovery to …

Tenth Amendment Challenges After Bond V. United States, Scott G. Thompson, Christopher Klimmek

Publications

In its recent decision in Bond v. United States, the Supreme Court explained that because the Tenth Amendment "secures the freedom of the individual," private parties who otherwise satisfy Article III's standing requirements and other prudential requirements may challenge federal laws as violating the Tenth Amendment. In so doing, the Court reversed the majority of circuit courts that have addressed the issue and removed a significant categorical bar to individual Tenth Amendment challenges. This Article explains Bond's holding and explores its implications for future Tenth Amendment challenges by private parties.

Although Bond contains some expansive language regarding the role …

Is Color Blind Justice Also Culturally Blind? The Cultural Blindness In Justice, Shiv Narayan Persaud

Journal Publications

As diverse ethnic groups continue to experience numeric growth and societal grounding in America, their advocacies for culturally competent representation within the legal system cannot be ignored or underplayed. Undoubtedly, some professions such as mental and physical health, and their related sectors, have developed and continue to integrate cultural competencies into their respective practices. Others such as the legal profession seem to lag in their advocacies and promotion of culturally competent practices.

In the criminal justice system, where discretionary legal decision-making authority is commonplace and may grossly affect the civil liberties of the citizenry, a paucity of standards requiring cultural …

Sorrell V. Ims Health And The End Of The Constitutional Double Standard, Ernest A. Young

Faculty Scholarship

No abstract provided.

Tnuva Central Cooperative V. Raabi Estate, Esther Hayut, Isaac Amit, Uzi Vogelman

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

An appeal and cross appeal challenging the decision of the Tel Aviv District Court (Partial Judgment and Supplementary Judgment,) where the court partially granted a consumer class action suit, which was granted leave to be submitted in CC 10085/080 (hereinafter: Tnuva). The class action suit revolved around the misleading of the consumer public and the production of a milk product in violation of binding …

The "Padilla Advisory" And Its Implications Beyond The Immigration Context, Hanh H. Le

William & Mary Bill of Rights Journal

No abstract provided.

Attorney's Fees In Civil Rights Cases - October 2009 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

Up Against The Wall: A Guide To The Effective Screening Of Former Government Attorneys In New York, Shira Mizrahi

Cardozo Public Law, Policy & Ethics Journal

The note examines New York Rule of Professional Conduct 1.11, which governs conflicts of interest for former government attorneys transitioning to private practice. It highlights the rule's strict requirements for screening to prevent conflicts and the "appearance of impropriety" standard, which allows courts to disqualify firms even without evidence of wrongdoing. The analysis critiques the rule's effectiveness, particularly in small firms, and proposes reforms to balance public trust, client interests, and attorneys' career mobility.

Does Legalzoom Have First Amendment Rights? Some Thoughts About Freedom Of Speech And The Unauthorized Practice Of Law, Catherine J. Lanctot

Working Paper Series

At a time of economic dislocation in the legal profession, it is likely that bar regulators will turn their attention to pursuing lay entities that appear to be engaged in the unauthorized practice of law. One prominent target of these efforts is LegalZoom, an online document preparer that has come under increasing pressure from the organized bar for its marketing and sale of basic legal documents. As regulatory pressure against LegalZoom and similar companies continues to mount, it is worth considering whether there may be unanticipated consequences from pursuing these unauthorized practice claims. In several well-known instances, lay people have …

Order For The Courts: Reforming The Nollan/Dolan Threshold Inquiry For Exactions, Winfield B. Martin

Seattle University Law Review

For decades prior to 2005, Fifth Amendment regulatory takings jurisprudence languished in a state of confused neglect. Rather than articulating a clearly discernable standard for determining whether a violation of the Takings Clause had occurred, Justices rebuffed government action that seemed to amount to “an out-and-out plan of extortion” and nodded in approval when they deemed the government to have “acted diligently and in good faith” or in furtherance of a “compelling interest.” In trying to parse this imprecise thicket, scholars have characterized the Court’s approach to regulatory takings as a “muddle,” in “disarray,” and “incoherent.” Professor Kent even noted …

Are Class Actions Unconstitutional?, Alexandra D. Lahav

Michigan Law Review

Are class actions unconstitutional? Many people-defendants and conservative legislators, not to mention scholars at the American Enterprise Institute-would like them to be. For opponents of the class action, Martin Redish's book Wholesale Justice provides some of the most theoretically sophisticated arguments available. The book is a major contribution both to the scholarly literature on class actions and to the larger political debate about this powerful procedural device. The arguments it presents will surely be debated in courtrooms as well as classrooms.

Attorney Advice And The First Amendment, Renee Newman Knake

Washington and Lee Law Review

An attorney’s advice for navigating and, when necessary, challenging the law is essential to American democracy. Yet the constitutional protection afforded to this category of speech is not clear; indeed, some question whether it should be protected at all. While legal ethics scholars have addressed attorney speech in other circumstances, none has focused exclusively on the First Amendment protection for attorney advice, particularly in light of the Supreme Court’s recent attention to the matter. Nor have constitutional law scholars given this issue the attention it deserves, though they acknowledge that it presents an important and unresolved question within First Amendment …

Parental Rights And The Best Interests Of The Child: Implications Of The Adoption And Safe Families Act Of 1997 On Domestic Violence Victims' Rights, Rachel Venier

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Illegal Aid: Legal Assistance To Immigrants In The United States, Geoffrey Heeren

Law Faculty Publications

There is an enormous unmet need for immigrant legal aid in the United States. This is partly due to regulations that bar federally funded legal services organizations from representing many types of immigrants. The possible repeal of these restrictions is rarely discussed as a means to expand immigrant access to counsel. Federal funding for immigrant legal aid appears to have become taboo, despite the fact that for much of its history, legal aid was deeply connected to immigration. This forgotten history reveals that there was once broad national consensus in favor of immigrant legal aid; it became contentious and faced …

Excessive Public Defense Workloads: Are Aba Standards For Criminal Justice Adequate, Norman Lefstein

UC Law Constitutional Quarterly

Excessive caseloads among public defenders in the United States is a pervasive national problem, which not only often prevents lawyers from furnishing their clients competent and diligent representation as required by rules of professional conduct but also jeopardizes the quality of justice in criminal and juvenile courts. Although the American Bar Association has addressed the problem in various policy statements, including its Criminal Justice Standards, Professor Lefstein argues that there are still issues that are not adequately covered. Specifically, he argues that the ABA should consider the development of standards that (1) authorize defenders to refuse to provide representation when …

State Courts And Constitutional Socio- Economic Rights: Exploring The Underutilization Thesis, Stephen Loffredo, Helen Herschkoff

Publications and Research

No abstract provided.

Marketplace Of Ideas 2.0: Excluding Viewpoints To Include Individuals, Robert Luther Iii

UC Law Constitutional Quarterly

What are the implications of the Christian Legal Society v. Martinez decision? First, in ruling that public universities may require that all recognized student organizations permit any and "all comers" to be eligible for all offices of the organization, the Court issued a narrow rule that is praiseworthy for its clarity but for little else. Second, and on the issue of precedent, it is worth noting that by ratifying Hastings' "all-comers" policy, the Court overlooked numerous precedents and historical facts that recognize the rights of students to associate with those of similar beliefs on campus and free of university-imposed burdens. …

Viewpoint Neutrality And Government Speech, Joseph Blocher

Faculty Scholarship

Government speech creates a paradox at the heart of the First Amendment. To satisfy traditional First Amendment tests, the government must show that it is not discriminating against a viewpoint. And yet if the government shows that it is condemning or supporting a viewpoint, it may be able to invoke the government speech defense and thereby avoid constitutional scrutiny altogether. Government speech doctrine therefore rewards what the rest of the First Amendment forbids: viewpoint discrimination against private speech. This is both a theoretical puzzle and an increasingly important practical problem. In cases like Pleasant Grove City, Utah v. Summum, the …

Christian Legal Society V. Martinez: Six Frames, Toni M. Massaro

UC Law Constitutional Quarterly

In Christian Legal Society v. Martinez, the United States Supreme Court upheld the Hastings Law School registered student organization ("RSO") policy, which required that all student groups comply with a nondiscrimination condition on RSO status and benefits. Viewing the case as a matter of government benefits, the Court held that the Christian Legal Society ("CLS") was obliged to comply with an "all-comers" condition on access to benefits, despite the burden on CLS members' expressive associational, free speech and religious freedom to organize around religious beliefs. According to the Court, the policy was a reasonable and viewpoint neutral condition on access …

How Equality Constitutes Liberty: The Alignment Of Cls V. Martinez, Julie A. Nice

UC Law Constitutional Quarterly

Across the constitutional doctrines protecting individual liberty from governmental interference, judicial inquiry often focuses on the unequal infringement of liberty. Many of the most important individual rights have emerged from the synergy between equality and liberty. But the Court has not yet provided any framework for understanding the various ways that liberty and equality interrelate. Neither has any consensus developed around any scholarly attempt to understand the relationship between liberty and equality. Without any grand theory, the search for understanding this important relationship is thus left to induction, as scholars examine one case at a time to glean both specific …

Advising Terrorism: Material Support, Safe Harbors, And Freedom Of Speech, Peter Margulies

Law Faculty Scholarship

No abstract provided.