Digital Commons Network^™

Rluipa Is A Bridge Too Far: Inconvenience Is Not Discrimination, Marci A. Hamilton

Fordham Urban Law Journal

No abstract provided.

As Good As It Gets? Security, Asylum, And The Rule Of Law After The Certificate Trilogy, Graham Hudson

Osgoode Hall Law Journal

This article uses constitutional discourses on the legality of security certificates to shed light on darker, neglected corners of the security and migration nexus in Canada. I explore how procedures and practices used in the certificate regime have evolved and migrated to analogous adjudicative and discretionary decision-making contexts. I argue, on the one hand, that the executive’s ability to label persons security risks has been subjected to meaningful constraints in the certificate regime and other functionally equivalent adjudicative proceedings. On the other hand, the ability of discretionary decision makers to deport individuals who pose de jure security risks to face …

Youthful Offenders And The Eighth Amendment Right To Rehabilitation: Limitations On The Punishment Of Juveniles, Martin R. Gardner

Nebraska College of Law: Faculty Publications

To understand the potential scope of the Court's implicit conclusion that the punishment of adolescents is unconstitutional unless a meaningful opportunity for rehabilitation is afforded, it is necessary to carefully distinguish and clarify the distinction between the conflicting concepts of punishment and rehabilitation. I therefore begin Part I by analyzing this distinction. Since the logic of the Court's decisions impacts the punishment of adolescents in both the juvenile and criminal justice contexts, I contrast the two systems in Part II by tracing the development of the juvenile court movement from its original rehabilitative origins towards an increasingly punitive model, dispensing …

Guns, Sex, And Race: The Second Amendment Through A Feminist Lens, Verna L. Williams

Faculty Articles and Other Publications

This article uses a recent move on the part of feminist legal advocates-social justice feminism ("SJF')--to explore the contours of the Second Amendment. Feminist legal theory, specifically SJF, reveals that the Second Amendment and attendant societal understandings ofthe right to keep and bear arms played a role in establishing and reproducing white male dominance. Understood in this way, the Court's decisions in Heller and McDonald reinforce structural oppression under the guise of promoting individual rights. To make that case, this article proceeds in four parts. Part I briefly addresses the question of why a feminist lens is useful in this …

Tears In Heaven: Religiously And Culturally Sensitive Laws For Preventing The Next Pandemic, Eloisa Rodriguez-Dod, Aileen M. Marty, Elena Marty-Nelson

Faculty Publications

In February 2016, the World Health Organization (WHO) declared a “public health emergency of international concern” due to the increased clusters of microcephaly, Guillain-Barré Syndrome, and other neurological disorders in areas affected by the Zika virus. That declaration came in the wake of the West Africa Ebola crisis. Back to back declarations by WHO of the highest threat level for an international public health emergency underscores how quickly pathogens can now spread and cause devastation across borders. It also highlights the need to implement lessons learned from each pandemic crisis without delay. These crises demonstrate that laws to curtail the …

Guns, Gays, And Ganja, Justin R. Long

Law Faculty Research Publications

No abstract provided.

As Good As It Gets? Security, Asylum, And The Rule Of Law After The Certificate Trilogy, Graham Hudson

Osgoode Legal Studies Research Paper Series

This article uses constitutional discourses on the legality of security certificates to shed light on darker, neglected corners of the security and migration nexus in Canada. I explore how procedures and practices used in the certificate regime have evolved and migrated to analogous adjudicative and discretionary decision-making contexts. I argue, on the one hand, that the executive’s ability to label persons security risks has been subjected to meaningful constraints in the certificate regime and other functionally equivalent adjudicative proceedings. On the other hand, the ability of discretionary decision-makers to deport individuals who pose de jure security risks to face torture …

Lethality, Public Carry, And Adequate Alternatives, Joseph Blocher, Darrell A. H. Miller

Faculty Scholarship

This Article explores the relationship between lethality and the right to bear arms, and considers how that relationship might be shaped by the availability of non-lethal alternative weapons. Prior scholarship has asked whether the Second Amendment includes a right to carry non-lethal “Arms.” An important set of related questions remains: does the Second Amendment necessarily include a right to arm oneself publicly with lethal force, if non-lethal alternatives are available? And how should one evaluate the adequacy of those alternatives?

The Second Amendment In The 21st Century: An In-Depth Examination Of Firearm Freedoms And Their Relationship With Public Safety And Interests, Mathew E. Klein

Honors Undergraduate Theses

One of the most hotly contested topics in the world today revolves around an object. An object that has caused debate among all members of society both in the United States, and all across the globe. But how could an object, something that on its own does nothing, spur such heated argument? This object is the evolution of invention and the product of fighting amongst each other. This object changes the way people think and how they act. This object can be used for both good and bad. This object is a gun.

This research project will explore the Second …

Never Alone: Why The Inevitable Influx Of Drones Necessitates A New Fourth Amendment Standard That Adequately Protects Reasonable Expectations Of Privacy, Paul Burgin

University of Baltimore Law Review

In June 2011, North Dakota cattle rancher Rodney Brossart became the first American to be arrested with the aid of a drone (Unmanned Aircraft System(s) or UAS) operated by law enforcement. Six cows found their way onto Brossart's property, and he refused to turn them over to law enforcement officials. Brossart and a few family members chased police officers off of his property at gunpoint, and police later returned with a warrant and SWAT team. A sixteen-hour standoff ensued until police called in the assistance of a UAS to pinpoint Brossart's exact location. Shortly thereafter, SWAT officers rushed in, tased, …

Out Of The Shadows: Deferred Action For Childhood Arrivals, Deferred Action To Parents Of Americans And Lawful Permanent Residents, And Executive Prosecutorial Discretion In Immigration Law, Olga Y. Kuchins

UC Law Constitutional Quarterly

Currently, more than eleven million undocumented immigrants live and work in the United States unlawfully. The Administration's effort to bring undocumented immigrants out of the "shadows" under the deferred action programs, while constitutional, is merely a Band-Aid-a temporary solution to Congress' unsuccessful efforts to pass legislation that addresses the issue of undocumented immigrants head on. This Note contextualizes the Obama Administration's deferred action programs within the larger framework of prosecutorial discretion in immigration law.

Section I lays the foundation for the Administration's decision to implement Deferred Action for Childhood Arrivals ("DACA") by discussing some of the major developments in United …

To Catch A Terrorist: The Improper Use Of Profiling In U.S. Post-9/11 Counterterrorism, Kamillia Crawford

Honors Undergraduate Theses

The attacks of September 11, 2001 (9/11) caused thousands of deaths, national and global panic, and immediate action by the federal government to protect the borders of the United States of America (USA) from terrorism. In response to these attacks, the United States (U.S.) government enacted laws for law enforcement agencies to protect against terrorist activities. Law enforcement agencies are effective in combating terrorism, but their measures contain a major flaw - the improper use of race in profiling to address national security and public safety concerns. Racial profiling is an ineffective measure for preventing terrorism. There are solutions to …

Reforming High-Stakes Police Departments: How Federal Civil Rights Will Rebuild Constitutional Policing In America, Ivana Dukanovic

UC Law Constitutional Quarterly

Over the past two decades, the Justice Department has untaken dozens of topdown interventions of local police departments plagued with unconstitutional policing. From Albuquerque, New Mexico, to Ferguson, Missouri, the Justice Department's Civil Rights Division has instituted reform in departments exhibiting patterns or practices that violate individuals' constitutional rights. The government's tool for imposing such reform and oversight on local, state power is a twenty-three-year-old statute: 42 U.S.C. 14141. This Note proposes that § 14141 is the change agent for rebuilding constitutional policing in America.

But with change comes challenge, and many pushback departments continue to resist reform. The Note …

The Freedom To Pursue A Common Calling: Applying Intermediate Scrutiny To Occupational Licensing Statutes, Alexandra L. Klein

Washington and Lee Law Review

No abstract provided.

Why We Need Reed: Unmasking Pretext In Anti-Panhandling Legislation, Joseph Mead

Law Faculty Articles and Essays

Over the past decade, there has been a dramatic increase in the number of areas where asking for help is restricted or banned. Whether called begging, panhandling, or solicitation, cities were spurred on by concerns of business owners and residents to ban or highly restrict this type of speech from occurring in public areas. Yet laws such as these have been repeatedly struck down by courts in recent months, fueled in large part by the Supreme Court’s decision in Reed v. City of Gilbert.

In this essay I argue that, at least in the context of anti-panhandling legislation, Reed …

Completing Government Speech's Unfinished Business: Clipping Garcetti's Wings And Addressing Scholarship And Teaching, Edward J. Schoen

UC Law Constitutional Quarterly

This article examines two major developments stemming from the U.S. Supreme Court decision in Garcetti v. Ceballos, in which the Court ruled: Statements made by public employees pursuant to their official duties are not protected by the First Amendment. Furthermore, the Court disclaimed whether or not its ruling applied to scholarship of teaching. First, this decision has triggered an avalanche of circuit court decisions dismissing 42 U.S.C. § 1983 employment retaliation claims, because the courts usually determined the expression was derived from the government employee's actual duties. Second, the disclaimer has created inconsistency and doubt in assessing § 1983 public …

The American Bar Association's Criminal Justice Mental Health Standards: Revisions For The Twenty-First Century, Christopher Slobogin

UC Law Constitutional Quarterly

The American Bar Association's revision of its Criminal Justice Mental Health Standards ("Standards"), promulgated in August 2016, tackles a wide range of issues concerning the involvement of people with mental disabilities in the criminal justice system. Consisting of over ninety black letter provisions, the Standards address diversion and specialized courts; the role of mental health professionals, the police, lawyers and correctional officials in cases involving people with mental disabilities; and the law and processes associated with competency, insanity, commitment, and capital and non-capital sentencing. This article describes the genesis of the Standards and explains their content, organized in terms of …

Students, Police, And The School-To-Prison Pipeline, Jason P. Nance

UF Law Faculty Publications

Since the terrible shootings at Sandy Hook Elementary School in Newtown, Connecticut, lawmakers and school officials continue to deliberate over new laws and policies to keep students safe, including putting more police officers in schools. Yet these decisionmakers have not given enough attention to the potential negative consequences that such laws and policies may have, such as creating a pathway from school to prison for many students. Traditionally, only educators, not law enforcement, handled certain lower-level offenses that students committed, such as fighting or making threats without using a weapon. Drawing on recent restricted data from the US Department of …

To Loose The Bonds: The Deceptive Promise Of Freedom From Pretrial Immigration Detention, Denise L. Gilman

Indiana Law Journal

Each year, the United States government detains more than 60,000 migrants who are eligible for release during immigration court proceedings that will determine their right to stay in the United States. Detention or release should be adjudicated through a custody determination process focused on the question of whether a mi-grant poses a flight risk or danger to the community. Yet, because the process skips the critical inquiry into the need for detention before setting monetary bond require-ments for release that are difficult to fulfill, freedom remains elusive.

The custody determination process is a cornerstone in the U.S. immigration de-tention edifice …

The Real-World Fourth Amendment, Brent E. Newton

UC Law Constitutional Quarterly

The Fourth Amendment's protections against unreasonable searches and seizures have resulted in a massive body of appellate case law, including several hundreds of decisions by the Supreme Court and many thousands of decisions by the lower courts. The Article, written by a former long-time public defender, provides a comprehensive and accessible survey of the Fourth Amendment as applied to recurring real-world situations in which a police officer or other governmental official engages in a search or seizure of property or a person. The Article addresses both "substantive" and "remedial" aspects of the Fourth Amendment in both criminal prosecutions and civil …

For The Protection Of Society's Most Vulnerable, The Ada Should Apply To Arrests, Thomas J. Auner

Loyola of Los Angeles Law Review

No abstract provided.

Miranda 2.0, Tonja Jacobi

Faculty Articles

Fifty years after Miranda v. Arizona, significant numbers of innocent suspects are falsely confessing to crimes while subject to police custodial interrogation. Critics on the left and right have proposed reforms to Miranda, but few such proposals are appropriately targeted to the problem of false confessions. Using rigorous psychological evidence of the causes of false confessions, this Article analyzes the range of proposals and develops a realistic set of reforms — Miranda 2.0 — which is directed specifically at this foundational challenge to the justice system. Miranda 2.0 is long overdue; it should require: warning suspects how long they …

Brief Of Amici Curiae Federal Courts Scholars And Southeastern Legal Foundation In Support Of Respondents, Kimberly S. Hermann, Ernest A. Young

Faculty Scholarship

No abstract provided.

When The Police Get The Law Wrong: How Heien V. North Carolina Further Erodes The Fourth Amendment, Vivan M. Rivera

Loyola of Los Angeles Law Review

No abstract provided.

Multifactoral Free Speech, Alexander Tsesis

Faculty Publications & Other Works

This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Faculty Publications & Other Works

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …

Balancing Free Speech, Alexander Tsesis

Faculty Publications & Other Works

This article develops a theory for balancing free speech against other express and implied constitutional, statutory, and doctrinal values. It posits that free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases involving competing rights, judges should examine (1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; (2) whether the restricted expression has been historically or traditionally protected; (3) whether a government policy designed to benefit the general welfare weighs in favor of the regulation; (4) the fit between the disputed speech regulation and the public end; and …

Person, State, Or Not: The Place Of Business Corporations In Our Constitutional Order, Daniel J.H. Greenwood

University of Colorado Law Review

Business corporations are critical institutions in our democratic republican, market-based, economic order. The United States Constitution, however, is completely silent as to their status in our system. The Supreme Court has filled this silence by repeatedly granting corporations rights against the citizenry and its elected representatives.

Instead, we ought to view business corporations, like municipal corporations, as governance structures created by We the People to promote our general Welfare. On this social contract view, corporations should have the constitutional rights specified in the text: none. Instead, we should be debating which rights of citizens against governmental agencies should also apply …

Palmer V. District Of Columbia, Brian Noel

NYLS Law Review

No abstract provided.

The Original Understanding Of "Property" In The Constitution, Paul J. Larkin Jr.

Marquette Law Review

Contemporary Supreme Court jurisprudence treats “property” as far less deserving of judicial protection than “life” or “liberty.” The Supreme Court, however, has misread American legal history. Anglo-American traditions, customs, and law held that property was an essential ingredient of the liberty that the Colonists had come to enjoy and must be protected against arbitrary governmental interference. The Framers’ generation believed that “property” and “liberty” were equally important institutions and that neither one could exist without the other. The Framers venerated property as a means of guaranteeing personal independence because (among other things) the concept of “property” embraced the legal rights …