Digital Commons Network^™

Section 1983 Litigation - Supreme Court Developments, Martin A. Schwartz

Touro Law Review

No abstract provided.

Elian Or Alien--The Contradictions Of Protecting Undocumented Children Under The Special Immigrant Juvenile Statute, Gregory Zhong Tian Chen

UC Law Constitutional Quarterly

In 1990, Congress enacted the Special Immigrant Juvenile ("SIJ") statute establishing a new form of immigration relief for undocumented children who have suffered from family abuse, neglect, or abandonment. The new law called for cooperation between federal immigration and state child welfare authorities in the implementation of the SIJ law, particularly with regard to jurisdictional and custodial power. Since the late nineteenth century, the federal government has asserted and maintained control over immigration matters, including determinations of individual immigration status. State and local governments, however, have historically taken principal responsibility for protecting the health, safety, and welfare of children within …

The First Amendment, The Right Not To Speak And The Problem Of Government Access Statutes, Anna M. Taruschio

Fordham Urban Law Journal

The dual principles of promoting the marketplace of ideas and protecting individual autonomy lie at the core of the First Amendment. When the government assumes an affirmative role by opening opportunities for public speech, it places individuals' negative liberties, such as the right not to speak, at risk. This conflict cannot be avoided by analyzing compelled speech outside of the First Amendment; the autonomy promised by the Bill of Rights and repeatedly affirmed by Supreme Court jurisprudence protects the right not to speak. Scholars, jurists, and practitioners therefore should pay close attention to the right not to speak when the …

Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier

Articles

The law of takings couples together matters that should be treated independently. The conventional view, shared by courts and commentators alike, has been that any takings case can be resolved in one of two ways: either there is a taking and compensation is due, or there is no taking and no compensation is due. These results are fine as long as one holding or the other serves the two central concerns of the Takings Clause - eficiency and justice. But a problem arises when the two purposes behind the law of takings come into cordhct, as they readily might. It …

Consti–Tortion: Tort Law As An End-Run Around Abortion Rights After Planned Parenthood V. Casey, A.J. Stone Iii.

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Landscape Of Constitutional Property, Thomas W. Merrill

Faculty Scholarship

The Constitution contains two clauses that protect persons against governmental interference with their property. The Due Process Clause provides that "No person shall ... be deprived of life, liberty, or property, without due process of law." The Takings Clause adds, "nor shall private property be taken for public use, without just compensation." Both provisions appear to impose a threshold condition that a claimant have some "property" at stake before the protections associated with the Clause apply. Thus, under the Due Process Clause, it would seem that a claimant must have an interest in "property" (or in "life" or "liberty") before …

Attorney-Client Privilege: Continuing Confusion About Attorney Communications, Drafts, Pre-Existing Documents, And The Source Of The Facts Communicated , Paul R. Rice

American University Law Review

No abstract provided.

Appendix: Biographies Of Participants , American University Law Review

American University Law Review

No abstract provided.

Transcript: Keynote Address , American University Law Review

American University Law Review

No abstract provided.

I'M Paying For That - Assessing The Constitutionality Of Mandating Student Activity Fees To Support Objectionable Political And Ideological Activities At Public Universities In Southworth V. Grebe, Matthew I. Weinstein

Villanova Law Review (1956 - )

No abstract provided.

The Constitutionalizing Of Ineffective Assistance Of Counsel, Richard Klein

Maryland Law Review

No abstract provided.

Section 60.41 Of The New York Criminal Procedure Law: The Sexual Assault Reform Act Of 1999 Challenges Molineux And Due Process, Brooks Holland

Fordham Urban Law Journal

The 1999 Sexual Assault Reform Act of 1999 proposed the addition of section 60.41 to Article 60 of the New York Criminal Procedure Law to allow prosecutors in sexual assault prosecutions to introduce evidence of a defendant's previous commission of any "offense or offenses of sexual assault.., on any matter to which it is relevant, including the defendant's propensity to commit an offense of sexual assault or the credibility of the alleged victim of the sexual assault . ." The author argues that this law would upset a century of New York law under the Molineux rule, which holds that …

"Reparative" Therapy: Whether Parental Attempts To Change A Child's Sexual Orientation Can Legally Constitute Child Abuse , Karolyn Ann Hicks

American University Law Review

No abstract provided.

Discrimination Cases In The Supreme Court's 1997 Term, Eileen Kaufman

Touro Law Review

No abstract provided.

Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier

Articles

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …

Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier

Articles

Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters …

The "Dirty Little Secret": Why Class Actions Have Emerged As The Only Viable Option For Women Inmates Attempting To Satisfy The Subjective Prong Of The Eighth Amendment In Suits For Custodial Sexual Abuse, Amy Laderberg

William & Mary Law Review

No abstract provided.

Justice Or Injustice For The Poor?: A Look At The Constitutionality Of Congressional Restrictions On Legal Services, J. Dwight Yoder

William & Mary Bill of Rights Journal

Upon enacting the Legal Services Corporation Act in 1974, Congress created the Legal Services Corporation (LSC), which provides federal funding to grantees that perform legal services for low-income individuals. In recent years, Congress has enacted restrictions upon grantees' receipt of such federal funding, limiting the legal services these legal aid attorneys can provide to their clients. This move has sparked great debate. Proponents of the restrictions argue that they are needed to correct abuse and misuse of the legal services program, while opponents argue that the restrictions only harm low-income individuals.

In this Note, the author addresses this controversial issue …

The District Of Columbia Revitalization Act And Criminal Justice: The Federal Government's Assault On Local Authority, Jonathan M. Smith

University of the District of Columbia Law Review

The District of Columbia ("the District") enjoys a unique relationship with the federal government. As a matter of Constitutional pronouncement, citizens of the District are deprived of the right to ultimate control over the content of local laws. The Constitution provides that, "[t]he Congress shall have the power ... to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States."2 Since the District's establishment in 1791, 3 Congress has not hesitated to exercise …

Slamming The Prison Doors On Media Interviews: California's New Regulations Demonstrate The Need For A First Amendment Right To Access To Inmates, Daniel Bernstein

McGeorge Law Review

No abstract provided.

Freedom Of Speech - How Does The New York State Constitution Compare To The United States Constitution?, Eileen Kaufman, Leon Friedman

Touro Law Review

No abstract provided.

Constitutional Challenges To New York State's Death Penalty Statute, John M. Shields

Fordham Urban Law Journal

New York State's death penalty statute is constitutionally flawed in many respects. It violates the state and federal prohibition against cruel and unusual punishment and provides unrestricted prosecutorial discretion to pursue the death penalty. This standardless and unfettered discretion creates the risk of arbitrary or discriminatory application of capital punishment.

Quo Vadis, Posadas?, William W. Van Alstyne

Faculty Scholarship

This examination looks at Virginia's ban on speech advertising motorcycles and revisits the question raised in the Posadas decision - may a state ban speech about a legal product the state could ban if it so desired. This article uses comparisons to the government employee speech cases to further illuminate the issue.

Compelled Lawyer Representation And The Free Speech Rights Of Attorneys, Leora Harpaz

Faculty Scholarship

This Article examines the Supreme Court's decision in Hurley v. Irish-American and compares it to the decision in Stropnicky v. Nathanson. It then considers whether there are sufficient distinctions between the two cases so as to defeat the First Amendment argument that was successful in Hurley. It concludes that the differences between the two cases are not sufficiently significant from the point of view of the First Amendment and that the application of the state public accommodation statute to a lawyer's ideologically motivated decision not to represent a client violates the First Amendment.

Slashing And Burning Prisoners' Rights: Congress And The Supreme Court In Dialogue, Susan Herman

Faculty Scholarship

No abstract provided.

Due Process, Court Of Appeals: Chaya S. V. Frederick L.

Touro Law Review

No abstract provided.

All Or Nothing, Or Maybe Cooperation: Attorney General Power, Conduct, And Judgment In Relation To The Work Of An Independent Counsel, John Q. Barrett

Faculty Publications

This Article considers the allocation of power under the independent counsel law between the Attorney General along with the Department of Justice and the independent counsel whose appointment the Attorney General has triggered. Although the law explicitly transfers much of an Attorney General's lawful power to an independent counsel, it does not go far enough in reallocating that power. Thus, it leaves a fundamental gap between what the current statute purports independent counsel to be and what it actually empowers independent counsel to accomplish. After an introduction in Part I, Part II of this article reviews the current legal provisions, …

Constitutional Law—Freedom Of Speech. No Longer That Crazy Aunt In The Basement, Commercial Speech Joins The Family. 44 Liquormart, Inc. V. Rhode Island, 116 S. Ct. 1495 (1996)., Jo-Jo Baldwin

University of Arkansas at Little Rock Law Review

No abstract provided.

Separation Of Powers, State Constitutions & The Attorney General: Who Represents The State, Patrick C. Mcginley

West Virginia Law Review

No abstract provided.

Gideon's Trumpet: Mournful And Muffled, Lewis R. Katz

Faculty Publications

The scope of this article is four-fold: (1) a description of the principal methods used to provide legal assistance to persons charged with criminal offenses; (2) a discussion of when legal assistance is constitutionally required and actually needed; (3)