Digital Commons Network^™

Guns And Speech Technologies: How The Right To Bear Arms Affects Copyright Regulations Of Speech Technologies, Edward Lee

William & Mary Bill of Rights Journal

This Article examines the possible effect the Supreme Court's landmark Second Amendment ruling in District of Columbia v. Heller will have on future cases brought under the Free Press Clause.' Based on the text and history of the Constitution, the connection between the two Clauses is undeniable, as the Heller Court itself repeatedly suggested. Only two provisions in the entire Constitution protect individual rights to a technology: the Second Amendment's right to bear "arms" and the Free Press Clause's right to the freedom of the "press," meaning the printing press. Both rights were viewed, moreover, as pre-existing, natural rights to …

Ricci V. Destefano: “Fanning The Flames” Of Reverse Discrimination In Civil Service Selection, Lauren Klein

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Caesar's Faith: Limited Government And Freedom Of Religion In Bruker V. Marcovitz, F C. Decoste

Dalhousie Law Journal

The Supreme Court of Canada has long pursued the view that our law is somehow an expression and repository of what it terms "Canada 's fundamental values." In Bruker v. Marcovitz, the Court added to the catalogue of these judicially decreed and enforced values one concerning religion, namely, the protection of Canadians against the arbitrary disadvantages of their religions. This comment argues that the Court's judgment in this regard constitutes a fundamental threat to religious liberty inasmuch as it subordinates religious beliefand practice to state values by making the legal acceptability of the former turn on their conformity to the …

Does The Constitutional Norm Of Separation Of Church And State Justify The Denial Of Tax Exemption To Churches That Engage In Partisan Political Speech, Johnny Rex Buckles

Indiana Law Journal

No abstract provided.

An Opinion Without Standards: The Supreme Court's Refusal To Adopt A Standard Of Constitutional Review In District Of Columbia V. Heller Will Likely Cause Headaches For Future Judicial Review Of Gun-Control Regulations, Ryan L. Card

Brigham Young University Journal of Public Law

No abstract provided.

Boumediene V. Bush: Another Chapter In The Court’S Jurisprudence On Civil Liberties At Guantanamo Bay, Amanda Mcrae

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Wyeth V. Levine: Examining The Doctrine Of Implied Preemption In State-Law Tort Claims, Allison Kostecka

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Guns As Smut: Defending The Home-Bound Second Amendment, Darrell A. H. Miller

Faculty Scholarship

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for 'future evaluation."

This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment …

Making Sense Of Schaumburg: Seeking Coherence In First Amendment Charitable Solicitation Law, John D. Inazu

Faculty Scholarship

The Supreme Court shaped its approach to charitable solicitation in a trilogy of cases in the 1980s: Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Joseph H. Munson Co. (1984), and Riley v. National Federation of the Blind of North Carolina (1988). Owing largely to ambiguity surrounding the concepts of content analysis, tiered scrutiny, and commercial speech emerging during that era, the Court failed to articulate a coherent framework for evaluating regulations of charitable solicitation. The result has left the Court without a clear understanding of the value of charitable solicitation. It has also …

'De Facto Sovereignty': Boumediene And Beyond, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

In Boumediene v. Bush, which grants non-citizens detained at Guantanamo Bay, Cuba, constitutional habeas corpus privileges the Supreme Court took notice that the United States maintains "de facto sovereignty" over that territory. As its sole precedential support, the Court cited a case that never mentions the term de facto sovereignty. What is this concept? How important is it to the Court's holding? Did the Court get the concept right given its longstanding usage and meaning in Supreme Court precedent? And what can de facto sovereignty tell us about when the Court will find habeas to extend to other situations …

The Original Meaning Of The Privileges And Immunities Clause, Robert G. Natelson

Georgia Law Review

The Constitution's Privileges and Immunities Clause drew on words and phrases common in Anglo-American law and law practice at the time the Clause was written. Modern courts and commentators have largely overlooked that law and practice, and thus have misinterpreted the Clause. It did not protect a right to travel, natural rights in general, colonial charter rights, or the "rights of Englishmen." The Clause meant only that if a state voluntarily bestowed positive legal benefits as incidents of its own citizenship, then that state had to grant those same benefits to visitors who were citizens of other U.S. states. This …

Smith, Stormans, And The Future Of Free Exercise: Applying The Free Exercise Clause To Targeted Laws Of General Applicability, Mark L. Rienzi

Scholarly Articles

Does the Free Exercise Clause extend to situations where the legislature deliberately targets a religious practice, but does so for neutral reasons and is willing to extend the ban to people who happen to engage in the same practice for non-religious reasons? While one can imagine reasonable arguments on both sides about the constitutionality of the Sunday morning alcohol ban, it seems absurd to say that the Free Exercise Clause is not part of the equation. Yet under the First Amendment analysis presently employed by many courts, that result is entirely likely.

The Constitutional Status Of Morals Legislation, John Lawrence Hill

Kentucky Law Journal

No abstract provided.

Using Article Iv Of The Illinois Constitution To Attack Legislation Passed By The General Assembly, Michael J. Kasper

Loyola University Chicago Law Journal

No abstract provided.

Boumediene V. Bush And Extraterritorial Habeas Corpus In Wartime, Riddhi Dasgupta

UC Law Constitutional Quarterly

How did the United States Supreme Court in Boumediene v. Bush conclude that the detention facility in Guantdnamo Bay, Cuba is indeed American territory for the purpose of habeas corpus? Why did the Court extend habeas to non-citizens as well? Which legal provisions and precedents guided the Supreme Court's analysis? The United States Constitution's Suspension Clause, precluding the suspension of habeas corpus except in well defined and discrete national security urgencies, is the controlling trump card raised by the detainees. This Commentary sets the stage for a multivariable conversation about the interplay among separation of powers, rejection of executive supremacy, …

Categoricalism And Balancing In First And Second Amendment Analysis, Joseph Blocher

Faculty Scholarship

The least discussed element of District of Columbia v. Heller might ultimately be the most important: the battle between the majority and dissent over the use of categoricalism and balancing in the construction of constitutional doctrine. In Heller, Justice Scalia’s categoricalism essentially prevailed over Justice Breyer’s balancing approach. But as the opinion itself demonstrates, Second Amendment categoricalism raises extremely difficult and still-unanswered questions about how to draw and justify the lines between protected and unprotected “Arms,” people, and arms-bearing purposes. At least until balancing tests appear in Second Amendment doctrine—as they almost inevitably will—the future of the Amendment will depend …

Transnational Wiretaps And The Fourth Amendment, Kristopher A. Nelson

UC Law Constitutional Quarterly

The Fourth Amendment protects Americans within the borders of the United States, but its applicability outside American territory is less clear. This Note maintains that Fourth Amendment protections should cover wiretap evidence seized abroad, not just that gathered domestically. These protections should apply whenever a prosecutor seeks to admit such evidence in criminal prosecutions in the United States. Such protections are fundamental whenever the government acts to gather or use evidence, whether that evidence was obtained outside the territorial jurisdiction of the United States or not.

The practical application of these protections for evidence gathered abroad presents problems, however. For …

Boumediene V. Bush: Justice Scalia’S Fear Of An Unfamiliar Race And Religion, Scott S. Allen Jr.

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

A Primer On North Carolina And Federal Use Of Force Law: Trends In Fourth Amendment Doctrine, Qualified Immunity, And State Law Issues, J. Michael Mcguinness

Campbell Law Review

This Article analyzes recent trends and updates the status of use of force law under North Carolina and federal standards.

Constitutional Rules And Institutional Roles: The Fate Of The Equal Protection Class Of One And What It Means For Congressional Power To Enforce Constitutional Rights, William Araiza

Faculty Scholarship

No abstract provided.

Evaluating Punishment In Purgatory: The Need To Separate Pretrial Detainees' Conditions-Of-Confinement Claims From Inadequate Eighth Amendment Analysis, David C. Gorlin

Michigan Law Review

The Due Process Clause prohibits all "punishment" of pretrial detainees- individuals that are held by the Government, but not adjudged guilty of any crime. The Eighth Amendment only prohibits the infliction of "cruel and unusual punishments" upon convicted individuals. Despite the Supreme Court's insistence that the Due Process Clause, and not the Eighth Amendment, protects pretrial detainees from deplorable and harmful conditions of confinement, most federal circuits now assess pretrial detainees' claims under Eighth Amendment standards. Under the Eighth Amendment framework, pretrial detainees must establish that conditions subjected them to a substantial risk of serious harm, and that jailers were …

The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz

Other Publications

As consumers, we assume that the automobiles, pharmaceuticals, medical devices, and other products we purchase are generally safe for their intended uses. We rely on manufacturers to design and produce safe products, and we assume that federal regulators are conscientious watchdogs of the marketplace. In most instances, our assumptions are valid and we safely go about our lives. But the regulatory system is now frayed to the point that dangerous products sometimes slip through the cracks. Vioxx, Firestone/ATX tires, and toxics-laden children’s toys have endangered and harmed millions. In these cases, society depends on the state courts as a venue …

Introduction , Amanda C. Dupree

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Accuracy Or Fairness: The Meaning Of Habeas Corpus After Boumediene V. Bush And Its Implications On Alien Removal Orders, Jennifer Norako

American University Law Review

Part One of this Comment will examine the developments of the writ of habeas corpus throughout the history of the United States, beginning with the importance the Founding Fathers placed on the writ. This section will also examine the recent changes in federal court review of alien removal orders, beginning with the 1996 legislation and continuing with the REAL ID Act, along with the federal courts’ responses to those acts. Part Two will then examine the majority opinion in Boumediene v. Bush, addressing the meaning and purpose that Justice Kennedy attached to the writ of habeas corpus and the analytical …

The Gap In Canadian Police Powers: Canada Needs 'Public Order Policing' Legislation, W. Wesley Pue, Robert Diab

All Faculty Publications

The authors identify a gap in Canadian policing law. Police have neither common law nor statutory authority to undertake the sorts of public order policing measures that are thought to be essential to securing large public events, such as Vancouver's 2010 Olympics. The paper argues for the adoption of a Public Order Policing Act designed to confer the necessary powers and ensure their operation in a manner that respects constitutional law and fundamental civil liberties. Revised and published as W. Wesley Pue & Robert Diab “The Gap in Canadian Police Powers: Canada Needs 'Public Order Policing' Legislation” (2010) 28 Windsor …

Out Of The Shadows: Preventive Detention, Suspected Terrorists, And War, David Cole

Georgetown Law Faculty Publications and Other Works

This article examines the appropriate and inappropriate role of "preventive detention" in responding to terrorist threats. It offers a constitutional jurisprudence of preventive detention, maintaining that absent a showing that dangerous behaviour cannot be addressed through criminal prosecution, preventive detention is unconstitutional. But criminal prosecution is not always a realistic option, and in those circumstances, preventive detention, carefully circumscribed and meticulously safeguarded by procedural protections, may be permissible. Familiar examples of accepted preventive detention regimes include civil commitment of dangerous persons who because of a mental disability cannot be held criminally responsible, and detention of enemy soldiers in a traditional …

Constitution And The Laws Of War During The Civil War, The Federal Courts, Practice & Procedure, Andrew Kent

Faculty Scholarship

This Article uncovers the forgotten complex of relationships between the U.S. Constitution, citizenship and the laws of war. The Supreme Court today believes that both noncitizens and citizens who are military enemies in a congressionally-authorized war are entitled to judicially-enforceable rights under the Constitution. The older view was that the U.S. government’s military actions against noncitizen enemies were not limited by the Constitution, but only by the international laws of war. On the other hand, in the antebellum period, the prevailing view was U.S. citizenship should carry with it protection from ever being treated as a military enemy under the …

Heller High Water? The Future Of Originalism, Jamal Greene

Faculty Scholarship

Has originalism won? It's easy to think so, judging from some of the reaction to the Supreme Court's recent decision in District of Columbia v. Heller. The Heller Court held that the District of Columbia could neither ban possession of handguns nor require that all other firearms be either unloaded and disassembled or guarded by a trigger lock. In finding for the first time in the Court's history that a gun control law violated the Second Amendment, Justice Scalia's opinion for the 5-4 majority appeared to be a sterling exemplar of originalism, the method of constitutional interpretation that he …

Workplace Electronic Privacy Protections Abroad: The Whole Wide World Is Watchin, William A. Herbert

Publications and Research

Legal and public policy ideas and concepts are known to traverse national borders. The rapidity of this multinational exchange of ideas has been substantially enhanced through the technological revolution over the past two decades. How a nation adopts or rejects particular ideas and concepts reflects on its particular history, culture and priorities. The establishment of legal protections for privacy against intrusions by governments, employers, companies and individuals represents a concept that has been adopted in different ways by other nations. This article will focus on how the European Union and certain Western countries have approached the issue of protecting individual …

Lessons From Hurricane Katrina: Prison Emergency Preparedness As A Constitutional Imperative, Ira P. Robbins

University of Michigan Journal of Law Reform

Hurricane Katrina was one of the worst natural disasters ever to strike the United States, in terms of casualties, suffering, and financial cost. Often overlooked among Katrina s victims are the 8,000 inmates who were incarcerated at Orleans Parish Prison (OPP) when Katrina struck. Despite a mandatory evacuation of New Orleans, these men and women, some of whom had been held on charges as insignificant as public intoxication, remained in the jail as the hurricane hit, and endured days of rising, toxic waters, a lack of food and drinking water, and a complete breakdown of order within OPP Wien the …