Digital Commons Network^™

The Evolution Of Youth As An Excuse: Striking A Balance Between The Interest Of Public Safety And The Principle That Kids Are Kids, Ashley A. Hughes

Touro Law Review

No abstract provided.

Professional Licenses And Substantive Due Process: Can States Compel Physicians To Provide Their Services, Carolyn R. Cody

William & Mary Bill of Rights Journal

No abstract provided.

Brown V. Plata: The Struggle To Harmonize Human Dignity With The Constitution, Benjamin F. Krolikowski

Pace Law Review

In Plata, the Supreme Court, in an opinion authored by Justice Anthony Kennedy, held that prisoners alleging conditions of confinement claims retain some degree of human dignity despite their lawful incarceration. Accordingly, federal courts must enforce the constitutional rights of prisoners when they are violated, even if this culminates in the release of some individuals from captivity. This is in stark contrast to previous cases where the federal courts have simply deferred to the judgment of prison administrators. Plata emphatically affirms the judiciary’s role in protecting prisoners’ rights, noting that court inaction in the face of ongoing and persistent constitutional …

Pretrial Detention And The Right To Be Monitored, Samuel R. Wiseman

Scholarly Publications

Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system. This Essay develops two related claims. First, in the near term, electronic monitoring will present a superior alternative to money bail for addressing flight risk. In contrast to previous proposals for reducing pretrial detention rates, electronic monitoring has the potential to reduce both fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants …

Abortion Exceptionalism And Undue Burden Preemption, Caitlin E. Borgmann

Washington and Lee Law Review

No abstract provided.

Prisoners And Habeas Privileges Under The Fourteenth Amendment, Lee B. Kovarsky

Faculty Scholarship

The U.S. Reports contain no answer to a million-dollar question: are state prisoners constitutionally entitled to a federal habeas forum? The Supreme Court has consistently ducked the basic constitutional issue, and academic work on the question idles on familiar themes.

The strongest existing argument that state prisoners are constitutionally entitled to a federal habeas forum involves a theory of incorporation under the Fourteenth Amendment’s Due Process Clause. I provide a new and different account: specifically, that the Fourteenth Amendment’s Privileges and Immunities Clause (“PI Clause”) guarantees a habeas privilege as a feature of national citizenship, and that the corresponding habeas …

Lethal Injection And The Right Of Access: The Intersection Of The Eighth And First Amendments, Timothy F. Brown

Faculty Publications, School of Management

The Spring and Summer of 2014 have witnessed renewed debate on the constitutionality of the death penalty after a series of high profile legal battles concerning access to lethal injection protocols and subsequent questionable executions. Due to shortages in the drugs traditionally used for the lethal injection, States have changed their lethal injection protocols to shield information from both the prisoners and the public. Citing public safety concerns, the States refuse to release information concerning the procurement of the drugs to the public. Such obstruction hinders the public’s ability to determine the cruelty of the punishment imposed and creates the …

Chapter 623: Giving The Wrongfully Convicted A Better Chance At Review, Natasha Machado

McGeorge Law Review

No abstract provided.

After The Cheering Stopped: Decriminalization And Legalism's Limits, Wayne A. Logan

Scholarly Publications

To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon. Despite enjoying broad political support, the decriminalization movement has however failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for …

Recent Development: Motor Vehicle Admin. V. Deering: A Driver Whose License Is Suspended Under The "Implied Consent, Administrative Per Se Law" Is Not Entitled To Consult With An Attorney Before Deciding Whether To Take A Breath Test, Patrick Toohey

University of Baltimore Law Forum

The Court of Appeals of Maryland held the implied consent, administrative per se law (“administrative per se law”) does not require that a suspected drunk driver be given the opportunity to consult an attorney before deciding whether to take a breath test. Motor Vehicle Admin. v. Deering, 438 Md. 611, 637, 92 A.3d 495, 511 (2014). The court found that the due process clause of the Fourteenth Amendment of the United States Constitution does not establish a pre-test right to counsel for a suspected drunk driver in an administrative proceeding.

Is Welching On Public Pension Promises An Option For Illinois? An Analysis Of Article Xiii, Section 5 Of Illinois Constitution, 48 J. Marshall L. Rev. 167 (2014), Eric Madiar

UIC Law Review

This Article reviews not only the Pension Clause’s language and origins, but also the constitutional convention debates discussing it, and relevant court decisions construing the provision. The Article also evaluates the arguments made by legal commentators on behalf of particular stakeholders about whether the Clause allows the legislature to cut the pension benefits of current public employees and retirees as well as other related issues. The Article concludes that the General Assembly cannot unilaterally cut the pension benefits of current employees or retirees as a means to reduce the State’s existing pension liabilities based on the Clause’s plain language, the …

Anonymity, Faceprints, And The Constitution, Kimberly L. Wehle

All Faculty Scholarship

Part I defines anonymity and explains that respect for the capacity to remain physically and psychologically unknown to the government traces back to the Founding. With the advent and expansion of new technologies such as facial recognition technology (“FRT”), the ability to remain anonymous has eroded, leading to a litany of possible harms.

Part II reviews the existing Fourth and First Amendment doctrine that is available to stave off ubiquitous government surveillance and identifies anonymity as a constitutional value that warrants more explicit doctrinal protection. Although the Fourth Amendment has been construed to excise surveillance of public and third-party information …

In Re C.P.: The Ohio Supreme Court's Expansion Of Roper V. Simmons And Graham V. Florida To The Realm Of Juvenile Sex Offender Registration, Ben Blumenthal

UC Law Constitutional Quarterly

In the landmark 2012 Ohio Supreme Court case In re C.P., the court held the statute mandating a minor's automatic lifetime registration as a sex offender constituted cruel and unusual punishment in violation of the Eight Amendment and Ohio's own constitutional prohibition against cruel and unusual punishment. Additionally, the court found automatic registration ran afoul of the Fourteenth Amendment's Due Process Clause.

In re C.P. raises several critical questions. Chief amongst them is whether categorical principles enunciated in Roper v. Simmons and Graham v. Florida should even apply to juvenile sex-offender registration schemes. This question is highly relevant because an …

Analyzing The Constitutional Implications Of The Department Of Veterans Affairs' Process To Determine Incompetency: Is The Federal Government Violating The Second Amendment And Due Process, Joshua Flynn-Brown

UC Law Constitutional Quarterly

Over the past decade the Department of Veterans Affairs ("VA") quietly reported hundreds of thousands of veterans to the National Instant Criminal Background Check list. Placement on the list prevents veterans from obtaining firearms from federal firearms licensees, effectively precluding exercise of the fundamental right to own a firearm. As of June 1, 2012, there were 153,298 names on the list with a shocking 99.3% of them from the VA. The VA is overreporting veterans by utilizing a very low financial incompetence standard: Once it determines that a veteran requires a fiduciary to administer benefit payments, the VA reports that …

Bring Your Own Devices: A Cautionary Tale For Public Employees During Investigatory Searches, Julie Chow

UC Law Constitutional Quarterly

The advancement of technology-specifically in the form of electronic communication devices-has given rise to a new phenomenon known as "Bring Your Own Device," or "BYOD," whereby employees use their personal electronic devices, such as smartphones, laptops and tablets, for work purposes. While this growing trend may be beneficial to employers and employees, it raises potential problems, especially in the area of employee privacy for those who work in state and local government. The extension of BYOD practices to public employers and government agencies raises Fourth Amendment concerns regarding whether employers may search these employee-owned devices for work purposes in the …

Passwords Please: Rethinking The Constitutional Right To Informational Privacy In The Context Of Social Media, Sara E. Stratton

UC Law Constitutional Quarterly

Much attention has been placed on social media privacy in the workplace. There have been several reports of public employers directing job applicants during their interview to divulge their username and password to allow the government to review the applicant's social media activity as part of a background check. This Note contends that the practice of public employers requiring applicants to provide their social media login information violates the constitutional right to informational privacy. With increasing access to the Internet and the popularity of social media, personal information on the Internet is becoming more accessible than ever before. Although the …

Fouling The First Amendment: Why Colleges Can't, And Shouldn't, Control Student Athletes' Speech On Social Media, Frank D. Lomonte

Journal of Business & Technology Law

No abstract provided.

Doe V. Wilmington Housing Authority: The Common Area Caveat As A Paradigmatic Balance Between Tenant Safety And Second Amendment Rights, Iyen Acosta

Catholic University Law Review

No abstract provided.

Sacred Rain Arrow: Honoring The Native American Heritage Of The States While Balancing The Citizens' Constitutional Rights, Amelia Coates

American Indian Law Review

Many states’ histories and traditions are steeped heavily in Native American culture, which explains why tribal imagery and symbolism are prevalent in official state paraphernalia such as license plates, flags, and state seals. Problems arise for states using Native American artwork when a citizen takes offense to the religious implications of Native American depictions, and objects to having it displayed on any number of items. This Comment will examine the likely outcome of cases involving Establishment Clause and compelled speech claims arising from Native American images and propose a solution for balancing the constitutional rights of the citizens while still …

Dispatches From The Trenches Of America's Great Gun Trust Wars, Lee-Ford Tritt

UF Law Faculty Publications

Without question, the national dialogue pertaining to the right to bear arms and the possible expansion of gun control regulations is shaping up to be one of the more heated political topics of the twenty-first century. At the moment, fervent participants on both sides of this ongoing debate have focused a spotlight on an estate planning instrument commonly referred to as a “gun trust.” Typically, estate planning products rarely cause the kind of nationally impassioned discussion as seen with gun trusts. So why have trusts, a commonly used estate planning tool, become entangled in this lively, and often vitriolic, national …

Review For Release: Juvenile Offenders, State Parole Practices, And The Eighth Amendment, Sarah F. Russell

Indiana Law Journal

State parole boards have historically operated free from constitutional constraints when making decisions about whether to release prisoners. Recent Supreme Court decisions subject states to a new constitutional requirement to provide a “meaningful opportunity to obtain release” for at least some categories of juvenile offenders. Using original data collected through a survey, this Article provides the first comprehensive description of existing parole board release procedures nationwide and explores whether these practices comply with the Court’s Eighth Amendment mandate.

The Court’s recent decisions in Graham v. Florida and Miller v. Alabama prohibit sentences of life without the possibility of release (LWOP) …

S.B. 9: A Second Chance For Juveniles Serving Life Without Parole In California In Theory - And Why It Won't Make A Difference In Practice, Evan Reese

UC Law Constitutional Quarterly

Historically, juveniles have been treated differently than adults when convicted of a crime. They were seen as less culpable than adults and more capable of reform. In California and in many other states, however, some juveniles have been tried as adults in a variety of situations. Recent legislation in California has offered a glimmer of hope, and perhaps a second chance, for some juvenile offenders who have been sentenced as adults to life without parole. S.B. 9 allows such juveniles to petition the court for resentencing after serving the first fifteen years of their life sentence. In theory, if the …

Alive Not Dead: The Revival Of Redevelopment Post-Matosantos, Helen Luu Chou

UC Law Constitutional Quarterly

In December 2011, the California Supreme Court in California Redevelopment Association v. Matosantos upheld AB 1X 26-a bill eliminating redevelopment agencies in California. Even though redevelopment officially ended with Matosantos, discussion concerning the state of redevelopment has since been revived. The purpose behind the dissolution of redevelopment agencies was to fund special districts in a time of financial crisis, but what instead followed was dissension within California as cities and counties strongly opposed the dissolution of redevelopment and instead filed lawsuits challenging the constitutionality of AB 1X 26, and its subsequent "clean up" bill, AB 1484. Moreover, the redevelopment wind-up …

Good Cause Requirements For Carrying Guns In Public, Joseph Blocher

Faculty Scholarship

No abstract provided.

The Second Amendment Implications Of Regulating 3d Printed Firearms, Michael L. Smith

Faculty Articles

3D printed firearms have arrived, and commentators are beginning to ask whether and how this new technology can be regulated. An inevitable question that governments and courts will need to confront when considering restrictions on 3D printed firearms is whether these restrictions violate the Second Amendment. In this paper, I argue that most restrictions on 3D printed firearms would survive Second Amendment challenges. In carrying out this argument, I consider a complete ban on the manufacturing and possession of 3D printed firearms and conclude that even this complete ban would be likely to survive Second Amendment challenges. Because these particularly …

Prison Health Care After The Affordable Care Act: Envisioning An End To The Policy Of Neglect, Evelyn Malavé

Faculty Publications

Inadequate prison health care has created a health crisis for reentering prisoners and their communities—a crisis that is exacerbated by barriers to employment and other collateral consequences of release. This Note will first examine how current Eighth Amendment doctrine has failed to sufficiently regulate prison health care so as to have any significant effect on the crisis. Next, it will argue that the Affordable Care Act (ACA) alters the Eighth Amendment analysis by triggering a change in the “evolving standards of decency” that guide the doctrine. Specifically, this Note will argue that, after the passage of the ACA, releasing sick, …

Woollard V. Gallagher: Normalizing The Fourth Circuit’S Approach To Second Amendment Challenges, William Young Jr.

Maryland Law Review Online

No abstract provided.

Solitary Confinement, Public Safety, And Recdivism, Shira E. Gordon

University of Michigan Journal of Law Reform

As of 2005, about 80,000 prisoners were housed in solitary confinement in jails and in state and federal prisons in the United States. Prisoners in solitary confinement are generally housed in a cell for twenty-two to twenty-four hours a day with little human contact or interaction. The number of prisoners held in solitary confinement increased 40 percent between 1995 and 2000, in comparison to the growth in the total prison population of 28 percent. Concurrently, the duration of time that prisoners spend in solitary confinement also increased: nationally, most prisoners in solitary confinement spend more than five years there. The …

In Need Of Clarification: A Call To Define The Scope Of The Routine Booking Exception By Adopting The Legitimate Administrative Function Test, Elizabeth Parrish

Catholic University Law Review

No abstract provided.

The Far-Reaching Shadow Cast By Ferguson, Kimberly Jade Norwood

Scholarship@WashULaw

In the Dred Scott case, Justice Taney remarked that black people “had no rights which the white man was bound to respect.” In The Far-Reaching Shadow Cast by Ferguson, Professor Norwood questions whether, in today’s society, Justice Taney’s sentiment still holds true. Citing examples of recent police shootings and beatings of unarmed African-Americans and personal and family experiences, Professor Norwood argues that our country is broken and needs fixing. Professor Norwood concludes that we are not the ‘post-racial’ society we claim to be and that the Michael Brown shooting, among others, provides a watershed moment to confront our country’s underlying …