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A Most Essential Power: The Case For Restoring Comprehensive Land Use Authority In Indian Country, Michelle Bryan

Public Land & Resources Law Review

Part I of this article provides a brief overview of allotment and its lingering jurisdictional quagmire on impacted reservations. Stepping outside of Indian Country, Part II then outlines the U.S. Supreme Court’s longstanding recognition of sweeping, area-wide government land use authority—authority it considers among the “most essential” and “least limitable.” The Court has never applied this established law when determining tribal sovereignty over land use. That application is long overdue.

Part III details how we arrived at this state of affairs—how tribes, despite starting with sovereign control over land use throughout their territories, experienced losses in that authority over time …

The Confined Life: Restrictions On Post-Conviction Sex Offenders Meets Habeas Corpus's "In Custody" Requirement, Christian Futch

Georgia Criminal Law Review

Clements v. Florida is a recent Eleventh Circuit decision holding that the court could not hear the habeas petition of a post-conviction sex offender in Florida since he failed to meet the “in custody” requirement for filing a habeas petition. However, the Eleventh Circuit did not consider the land restrictions in place against the petitioner and other sex offenders in Florida. This decision may leave sex offenders without an avenue to challenge the restrictions in place against them. Such restrictions have led to homelessness and poverty leaving sex offenders with no place to work or live, in poverty, as outcasts …

Criminalization Of Immigration Through State Enforcement: Lessons From Texas’S Latest Efforts To Criminalize Immigration Through Senate Bill 4, A. Regenold Bright

University of Arkansas at Little Rock Law Review

No abstract provided.

Facial Recognition Ai, Margaret Hu

Faculty Publications

The integration of algorithmic decisionmaking and artificial intelligence (“AI”) into facial recognition technology poses new, unprecedented risks to privacy and individual autonomy rights, particularly in urban settings. The murder of Brian Thompson, CEO of UnitedHealthcare, in New York City on December 4, 2024, provides a timely case study to examine the deployment of facial recognition systems by the New York Police Department and other law enforcement agencies to identify the suspect. New York City deploys some of the most sophisticated surveillance architecture in the nation, put into place following the terrorist attacks of September 11, 2001. This Article explores the …

In Re Adoption Of E: First Amendment Rights And Religious Inquiry In Adoption Proceedings, Francis J. Scanlon

Maine Law Review

The New Jersey Supreme Court decision, In re Adoption of E, represents an effort to define what considerations are to be given the religious beliefs of prospective adoptive couples in the screening process of the adoption courts. The majority opinion is emphatic in spelling out what courts cannot do. In overruling the lower court's decision, it was held that the first amendment prohibits the denial of a couple’s adoption request solely because the court disapproves of their religious beliefs. Though holding that a couple's religion cannot be a controlling factor in an adoption denial, the court did not see religion …

Due Process And Supremacy As Foundations For The Adequacy Rule: The Remains Of Federalism After Wilbur V. Mullaney, Maine Law Review

Maine Law Review

Stillman E. Wilbur, Jr., was found guilty of murder by a jury in a Maine Superior Court and appealed, contending that the trial judge's instructions violated due process. In essence, the trial court instructed the jury that if it were satisfied beyond a reasonable doubt that Wilbur had committed a voluntary and intentional killing, malice aforethought was presumed, and therefore, the defendant would be guilty of murder unless he established by a preponderance of the evidence that he had killed in the heat of passion upon sudden provocation, in which case the jury could find him guilty of manslaughter. The …

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

But For A Free Press: A Response To Press Freedom Skeptics, Patrick J. Charles, Kevin Francis O'Neill

William & Mary Bill of Rights Journal

This Article is divided into three Parts. Part I will outline the history-in-law case for why the historical record sufficiently supports recognizing distinct constitutional press freedoms. Part II then provides a history-in-law response to some of the most common arguments made by press freedom skeptics as to why distinct constitutional press freedoms should not be recognized by the courts. Lastly, Part III makes the case for why the recognition of distinct constitutional press freedoms should become a jurisprudential reality and provides a roadmap to accomplish this.

This abstract has been taken from the authors' introduction.

Second Amendment Principles, Jamie G. Mcwilliam

William & Mary Bill of Rights Journal

In United States v. Rahimi, the Supreme Court explained that firearm regulations “must comport with the principles underlying the Second Amendment.” This Article examines what those principles are, how to derive them, and how to apply them in concrete cases. It begins with the Second Amendment’s core principle of defense of self and community, which traces its lineage back to classical thinkers like Aquinas and Grotius. The tradition of firearm regulation that surrounded the adoption of the Second Amendment depended on this fundamental principle. But it also developed subsidiary principles that implement the defense principle in specific ways. This …

California’S Ban On Cruel Or Unusual Punishment: A State Constitutional Analysis Of Anti-Camping Ordinances, Anna R. Janson

Connecticut Law Review

In Martin v. City of Boise, the United States Court of Appeals for the Ninth Circuit relied on the Cruel and Unusual Punishment Clause of the Eighth Amendment to rule that a class of involuntarily unhoused individuals may not be criminally punished for sleeping on public property in the absence of “sufficient alternatives” for all unhoused people. In Johnson v. City of Grants Pass, the Ninth Circuit elaborated that civil schemes which lead to criminal punishment are unconstitutional as well. However, the United States Supreme Court granted certiorari in the latter case and disrupted both Ninth Circuit decisions. The Court …

The Different Rhetoric Between Upholding And Overriding Disability Rights Inside The United States Supreme Court, Shane Egan

Political Science Undergraduate Honors Theses

This paper seeks to explain the rhetoric the U.S. Supreme Court uses when deciding disability cases, specifically when the Court upholds or overrides disability rights. The paper attempts to show how when the Court upholds disabled rights they use passive and weak rhetoric, and utilizes active and enforcing rhetoric when overriding disability rights. This paper analyzes this rhetoric inside education, healthcare, and employment cases heard by the Supreme Court.

Does The Major Questions Doctrine Apply To The Federal Courts?, Michael Coenen, Seth Davis

Fordham Law Review

The new “major questions doctrine” (MQD) requires courts to apply a “distinct” approach to statutory interpretation when reviewing challenges to an agency action of “vast economic and political significance.” Under that approach, courts must assume that such an action exceeds the scope of that agency’s statutory authority unless there exists “clear congressional authorization” for it. In this Article, we examine whether this new rule for administrative agencies (or what we call the “agency MQD”) implies the existence of a similarly strong constraint on the federal courts’ power to interpret and apply statutes for themselves (or what we call the “judicial …

But For A Free Press: A Response To Press Freedom Skeptics, Kevin F. O'Neill, Patrick J. Charles

Law Faculty Articles and Essays

This Article is divided into three Parts. Part I will outline the history-in-law case forwhy the historical record sufficiently supports recognizing distinct constitutional press freedoms. Part II then provides a history-in-law response to some of the most common arguments made by press freedom skeptics as to why distinct constitutional press freedoms should not be recognized by the courts. Lastly, Part III makes the case for why the recognition of distinct constitutional press freedoms should become a jurisprudential reality and provides a roadmap to accomplish this.

The Imposition Of Constitutional Rights, Alvin Padilla-Babilonia

Michigan Law Review

One of the central principles of constitutionalism is that citizenship stands for equal rights under the law. According to this ideal, a U.S. citizen living in Puerto Rico or Guam should have the same constitutional rights as a citizen living on the mainland. However, throughout U.S. history, constitutional rights have been neither uniform nor centralized. While constitutional rights held importance, they coexisted with ideals of democratic self-governance and legal pluralism. Today, Supreme Court justices and legal scholars argue that all constitutional rights should apply in the territories. This view upholds citizenship, equal rights, and the rule of law. But the …

Development And Practice Of Tribal Community Planning: Ensuring Indigeneity In The Planning Process, Jared E. Munster, Ph.D.

American Indian Law Journal

No abstract provided.

The Imposition Of Constitutional Rights, Alvin Padilla-Babilonia

Faculty Publications

One of the central principles of constitutionalism is that citizenship stands for equal rights under the law. According to this ideal, a U.S. citizen living in Puerto Rico or Guam should have the same constitutional rights as a citizen living on the mainland. However, throughout U.S. history, constitutional rights have been neither uniform nor centralized. While constitutional rights held im- portance, they coexisted with ideals of democratic self-governance and legal pluralism. Today, Supreme Court justices and legal scholars argue that all constitutional rights should apply in the territories. This view upholds citizenship, equal rights, and the rule of law. But …

Innocence And Habeas Corpus: A Call For Equitable Reforms, Paige Skousen Nelson

BYU Law Review

Congress intended the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) to codify the Burger and Rehnquist Courts’ habeas corpus jurisprudence, which aimed to establish finality and innocence as gatekeepers to the “Great Writ.” But in practice, AEDPA hinders innocence claims, particularly claims of legal innocence.

This Note agrees that innocence should be one of the most important considerations in granting writs but argues that it is not as valued as Congress intended. This Note proposes two congressional reforms to reinstate innocence to its paramount role without compromising finality: first, amending the federal habeas petition rule to allow petitioners …

Brief Of Amici Curiae Fred T. Korematsu Center For Law And Equality, Service Employees International Union, American Federation Of Teachers, American Association Of University Professors, Center For Civil Rights And Critical Justice, Race And Law Centers, And Civil Rights And Advocacy Organizations In Support Of Plaintiff, Susan Godfrey Llp V. Executive Office Of The President, U.S. District Court For The District Of Columbia (Docket No. 1:25-Cv-01107-Lla), Charlotte Garden, Jeremiah Chin, Jessica Levin, Melissa Lee, Jim Davy, Robert S. Chang, Susan Mcmahon

Court Briefs

No abstract provided.

Corrected Brief Of Amici Curiae Fred T. Korematsu Center For Law And Equality, Service Employees International Union, American Federation Of Teachers, American Association Of University Professors, Center For Civil Rights And Critical Justice, Center For Law, Equity And Race, Center For Racial And Economic Justice, Center On Law, Race & Policy, Center On Race, Inequality, And The Law, Gibson-Banks Center For Race And The Law, The Lawyering Project, Autistic Self Advocacy Network, Bazelon Center For Mental Health Law, And Disability Law United In Support Of Plaintiff, Perkins Coie, Llp V. U.S. Department Of Justice, United States District Court For The District Of Columbia (Case No. 1:25-Cv-00716-Bah), Charlotte Garden, Jeremiah Chin, Jessica Levin, Melissa Lee, Jim Davy, Robert S. Chang, Susan Mcmahon

Court Briefs

No abstract provided.

Stacked Against Defendants: Retroactivity, Vacatur, And The First Step Act In Hewitt V. United States, Matthew N. Barry

Duke Journal of Constitutional Law & Public Policy Sidebar

In 2018, Congress passed the First Step Act with overwhelming bipartisan support. One of its provisions, § 403, clarifies 18 U.S.C. § 924(c) by eliminating the "stacking" of mandatory minimum sentences for certain firearm offenses for first-time offenders. Section 403(b) makes the provision retroactive so long as "a sentence for the offense has not been imposed" as of the Act's date of enactment.

In 2009, bank robbers Corey Duffey, Tony Hewitt, and Jarvis Ross were convicted of several federal crimes, including stacked § 924(c) offenses. After their sentences were vacated in 2020, they argued that they should be resentenced under …

Compelled Expression: Maynard V. Wooley, Maine Law Review

Maine Law Review

In 1969, the New Hampshire legislature enacted a law requiring that the state motto, "Live Free or Die," be displayed on all license plates for noncommercial vehicles. Many individuals in New Hampshire objected to the motto for various religious or philosophical reasons, and several decided to obliterate the motto by placing tape or painting over it. After numerous prosecutions under the license plate defacement statute, the constitutionality of the law was challenged as it applied to the obliteration of the motto. In 1972, the New Hampshire Supreme Court in State v. Hoskin held that the law did not violate the …

The Use Of Federal Habeas Corpus In Child Custody Disputes, Maine Law Review

Maine Law Review

Inability to enforce child custody decrees on a nationwide basis has created an unfortunate and well-publicized anomaly in the law. A parent disappointed with one state's award of custody may remove the child to another jurisdiction, gambling that the second state's courts will decline to enforce the original decree. Of the several remedies that have been suggested to relieve this situation, federal habeas corpus remains among the least explored. The use of federal habeas corpus in child custody disputes raises two questions central to every federal jurisdictional controversy: Do the federal courts have power to entertain the action? If the …

"Fighting Words" And The First Amendment In Maine: State V. John W., Deborah J. Ross

Maine Law Review

On April 1, 1979, John W. was driving his car, accompanied by his sister Maria. The car was stopped by a police officer who requested John's license and registration. Maria asked the officer why they had been stopped. When the officer remained silent, Maria became abusive and was arrested for disorderly conduct. John demanded to know what was going on. Ordered to get back into his car, John began shouting at the police: "Hey, turn around and come back here;" "Hey, you fucking pig, you fuckin' kangaroo;" "Fuck you." John was arrested and convicted in a juvenile proceeding of disorderly …

Historical Firearm Licensing And Permitting Laws, Robert J. Spitzer

Dickinson Law Review (2017-Present)

No abstract provided.

Data Privacy At The Border: How To Balance National Security Concerns And Privacy Interests When Conducting Forensic Border Searches Of Electronic Devices, Eleni Filley

Washington and Lee Journal of Civil Rights and Social Justice

Do you know where your phone is? Can you describe the last five pictures in your camera roll? How many websites have you visited this month? Cell phones are an extension of our person and contain some of our most private data: location, banking, loved ones, sleep statistics, reproductive information, and more. As our technology develops, so too should our laws. This Note explores the lack of privacy protections at the U.S. border and how susceptible our data is to a government search. A Supreme Court ruling recognizing the unique piece of property a cell phone represents, even at a …

Hate Groups And The Charitable Tax Exemption, Miriam Galston

UC Law Constitutional Quarterly

No abstract provided.

Her Fundamentals: Justice Abella And Section 2(B) Of The Charter, Jamie Cameron

Articles & Book Chapters

Justice Abella’s legendary aspirations for human rights all but defined her jurisprudence, and under s,2 she earned praise elsewhere for her opinions on religious freedom (s.2(a) of the Charter) and the right to strike under s.2(d)’s guarantee of associational freedom. Apart from Doré v. Barreau de Québec, her s.2(b) jurisprudence on freedom of expression has attracted less scholarly attention. This article highlights Justice Abella’s leadership under s.2(b) in protecting expressive freedom’s democratic values, developing a more robust form of proportionality balancing under s.1, and advocating for doctrinal recognition of freedom of the press and media as an independent …

The Waiting Is The Hardest Part: The Constitutionality Of Firearm Waiting Periods, F. Lee Francis

Dickinson Law Review (2017-Present)

This Article examines the constitutionality of firearm waiting period laws through the lens of the Supreme Court’s evolving Second Amendment jurisprudence. Although such laws are frequently defended as prudent public safety measures, their validity turns not on legislative purpose but on constitutional principle, particularly as framed in District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen.

Under those decisions, the scope of the Second Amendment is determined not by judicial balancing of contemporary interests, but by reference to the Nation’s historical tradition of firearm regulation. The Article surveys that tradition and finds no …

The Wrongly Read Right: Insurrection And The Second Amendment Right To Bear Arms, Aman Mcleod, Jacob M. Jones

Dickinson Law Review (2017-Present)

Several judges and scholars have interpreted the Second Amendment as creating a right to bear arms to facilitate armed resistance against the government whenever it threatens to impose tyranny. These arguments have been made in books, scholarly articles, and court decisions. Many of the proponents of the pro-armed insurrection interpretation of the Second Amendment root this point of view in the history of the right to bear arms in the Anglo-American legal tradition. This Article argues that the Second Amendment does not create a right to bear arms to resist government authority because such a right is inconsistent with several …

Some Issues In Armed Conflict And Human Rights: Issues Toward Human Rights And Applicable Law In The Battlefield, Hiroshi Saito

Japanese Society and Culture

In recent years, Japan’s legal system regarding defense has improved, but little research has been conducted on what would happen if Japanese territory became a battlefield. Due to the Japan–US Security Treaty and the Japan–US Status of Forces Agreement, Japanese territory could technically become a space for armed conflict in the wake of US military action. If this happened, various legal issues would arise, but under the Japanese Constitution and domestic laws, which are primarily concerned with the protection of human rights, there would be a dual application of international humanitarian law and domestic laws including the Constitution. An important …