Digital Commons Network^™

Human Zoning: The Constitutionality Of Sex-Offender Residency Restrictions As Applied To Post-Conviction Offenders, Ryan Hawkins

The University of New Hampshire Law Review

[H]igh recidivism rates shows that the threat of jail time alone is not sufficient to curb sex crimes. With this in mind, legislators sought to find other ways that would protect potential victims. Community notification laws were the first policy to be implemented. Community notification methods included press releases, flyers, phone calls, door-to-door contact, neighborhood meetings, and Internet sites, which informed citizens of the name, location, and/or other information of persons who had been convicted of sex crimes.

Part II of this note will describe current sex-offender restrictions in place across the country. Part III will provide a constitutional analysis …

From “Just” To “Just Decent”? Constitutional Transformations And The Reordering Of The Twenty-First-Century Public Sphere, Cindy Skach

Maryland Law Review

No abstract provided.

Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin

Osgoode Hall Law Journal

In "Charter Dialogue Revisited-Or 'Much Ado About Metaphors,"' it is noted that the original idea behind the dialogue metaphor was simply to describe Canada's constitutional structure. Despite this, the metaphor has been criticized for having normative content and influencing courts and legislatures. In this commentary, the authors analyze all Supreme Court of Canada and lower court uses of the dialogue metaphor and conclude that, with some exceptions, the courts have employed the metaphor properly, i.e., descriptively. Since, however, the metaphor can be misapplied-used other than to describe or explain the relationship between the courts and legislatures in Canada-the authors recommend …

Charter Dialogue Revisited: Or "Much Ado About Metaphors", Peter W. Hogg, Allison A. Bushell Thornton, Wade K. Wright

Osgoode Hall Law Journal

This article is a sequel to the 1997 article "The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter of Rights Isn't Such A Bad Thing After All)." In the present article, the authors review various academic critiques of their "dialogue" theory, which postulates that Charter decisions striking down laws are not the last word, but rather the beginning of a "dialogue," because legislative bodies are generally able to (and generally do) enact sequel legislation that accomplishes the main objective of the unconstitutional law. The authors also examine the Supreme Court of Canada's dicta on the "dialogue" phenomenon, and …

Sharpening The Dialogue Debate: The Next Decade Of Scholarship, Kent Roach

Osgoode Hall Law Journal

The first part of this commentary examines the roles of coordinate construction in which legislatures act on their own interpretation of the constitution, second look cases in which the courts judge the constitutionality of a legislative reply to a judicial decision, and various constitutional remedies. The second part examines some differences in emphasis between the author's approach to dialogue and that taken by Hogg and his co-authors with respect to the justification of the judicial role in the dialogue, the relation between Charter dialogue and common law constitutionalism, and the proper interpretive approach to section 7 of the Charter. Three …

The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog

Articles

A Baltimore library refused to admit Louise Kerr to a training program because she was black. Not that it had anything against blacks, but its patrons did. When Kerr launched a civil suit against the library alleging a violation of equal protection of the laws, the courts credited the library's claim that it had no racist purpose, but Kerr still prevailed-even though the case occurred before Title VII and Brown v. Board of Education. Here a neutral and generally applicable rule ("serve the patrons"), when coupled with particular facts about private parties (the white patrons dislike blacks), yielded an …

On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar

Articles

Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.

Civil Liberties In Uncivil Times: The Perilous Quest To Preserve American Freedoms, Kenneth Lasson

All Faculty Scholarship

The perilous quest to preserve civil liberties in uncivil times is not an easy one, but the wisdom of Benjamin Franklin should remain a beacon: "Societies that trade liberty for security end often with neither." Part I of this article is a brief history of civil liberties in America during past conflicts. Part II describes various actions taken by the government to conduct the war on terrorism - including invasions of privacy, immigration policies, deportations, profiling, pre-trial detentions, and secret military tribunals. Part III analyzes the serious Constitutional questions raised by the government's actions in fighting terrorism. The thesis throughout …

The Founders' Hermeneutic: The Real Original Understanding Of Original Intent, Robert G. Natelson

Faculty Law Review Articles

This article re-examines the controversial question of whether the American Founders believed their own subjective understandings should guide future interpretation of the U.S. Constitution, or whether they thought the constitutional construction should be guided only by objective public meaning or some other hermeneutic standard.

The Problem Of Official Discretion In Anti-Terrorism Law: Comment On Khawajah, W. Wesley Pue, Robert Russo

All Faculty Publications

This paper assesses the first judicial ruling on key provisions of the Anti Terrorism Act. Rutherford J.'s ruling struck down provisions creating a motive requirement in the definition of terrorist activity while upholding the overall structure of the act against challenges on the basis of overbreadth and vagueness. A fault-line divides the two sides of the ruling. On one side the court looked to the lived-experience of legal rules, concluding that including motive requirements would mislead officials in the direction of improper and unconstitutional racial or religious profiling. On the other side of the fault-line the court restricted itself to …

Underlying Principles, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In his forthcoming article, Original Meaning and Abortion, Jack Balkin makes the startling disclosure that he is now an originalist. "[C]onstitutional interpretation," he writes, "requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. The task of interpretation is to look to original meaning and underlying principle and decide how best to apply them in current circumstances. I call this the method of text and principle."

In this brief reply, the author cautions that, to remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text …

Public Protection, Proportionality, And The Search For Balance, Benjamin J. Goold, Liora Lazarus, Gabriel Swiney

All Faculty Publications

This report examines how courts in the UK and Europe respond when human rights and security appear to conflict. It compares cases from the United Kingdom, France, Germany, Spain, and the European Court of Human Rights (ECtHR). It examines how rights are applied and how courts use the concept of proportionality to mediate conflicts between rights and security. The report concludes that British courts are less consistent in their application of proportionality than countries with constitutional rights protections which tend to be more rigorous in their protections of rights than are countries, like the UK, that rely instead on the …

Judge Richard Posner On Civil Liberties: Pragmatic Authoritarian Libertarian, Bernard Harcourt

Faculty Scholarship

How do you reconcile an opinion like Edmond v Goldsmith with the anti-civil-libertarian positions that Richard Posner advocates in his book Not a Suicide Pact: The Constitution in a Time of National Emergency? The book itself is self-consciously directed against a civil libertarian framework. "The sharpest challenge to the approach that I am sketching," Posner knowingly anticipates, "will come from civil libertarians," by which he means those "adherents to the especially capacious view of civil liberties that is often advanced in litigation and lobbying by the American Civil Liberties Union." In his book, Richard Posner argues in defense of the …

Why Not A Miranda For Searches?, Gerard E. Lynch

Faculty Scholarship

I am delighted to be here today.

I am delighted to be at The Ohio State University, which has not only built a truly extraordinary criminal law and procedure faculty, including Professor Joshua Dressler, Alan Michaels, Sharon Davies, and Douglas Berman, but has also accumulated a large number of alumni of my home institution, Columbia Law School, including my former students, Professor Edward Foley and the aforesaid Professors Davies and Michaels, as well as Professor Deborah Jones Merritt, who is quite literally a daughter of Columbia, where her father is a distinguished emeritus member of the faculty, my esteemed senior …

A Textual And Historical Case Against A Global Constitution, Andrew Kent

Faculty Scholarship

he emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …

Sex Offenders In The Community: Their Public Persona And The Media's Corresponding Privilege To Report, Douglas Griswold

William & Mary Bill of Rights Journal

No abstract provided.

Down To The Wire: Assessing The Constitutionality Of The National Security Agency's Warrantless Wiretapping Program: Exit The Rule Of Law, Fletcher N. Baldwin Jr., Robert B. Shaw

UF Law Faculty Publications

The article discusses the constitutionality of warrantless wiretapping surveillance by the National Security Agency (NSA) on U.S. citizens. The wiretapping program existed weeks after the September 11, 2001 attacks, on the justification that Congress authorized the president to wiretap U.S. citizens without a warrant, and that the president had inherent authority as commander-in-chief. But it is argued that Congress did not expressly authorize the president to conduct warrantless wiretapping and that he does not have such inherent authority.

We intend this Article to be a commentary on the constitutionality of the NSA wiretapping program solely as it relates to the …

Exactions: Exploring Exactly When Nollan And Dolan Should Be Triggered, Jane C. Needleman

Cardozo Law Review

No abstract provided.

Economic Emergency And The Rule Of Law, Bernadette A. Meyler

Cornell Law Faculty Publications

Academic work extolling the merits of the "rule of law" both domestically and internationally abounds today, yet the meanings of the phrase itself seem to proliferate. Two of the most prominent contexts in which rule of law rhetoric appears are those of economic development and states of emergency. In the area of private law, dissemination of the rule of law across the globe and, in particular, among emerging market countries is often deemed a prerequisite for enhancing economic development, partly because it ensures that foreign investments will not be summarily expropriated and that contractual rights will not be frustrated by …

First Principles For Virginia's Fifth Century, Hon. Robert F. Mcdonnell

University of Richmond Law Review

No abstract provided.

Off To Elba: The Legitimacy Of Sex Offender Residence And Employment Restrictions, Joseph L. Lester

ExpressO

Overborne by a mob mentality for justice, officials at every level of government are enacting laws that effectively exile convicted sex offenders from their midst with little contemplation as to the appropriateness or constitutionality of their actions. These laws fundamentally alter the liberties and freedom of convicted sex offenders to satisfy the ignorant fear of the masses. As a result, residence and employment restrictions which in theory are to protect society, in practice only exacerbate the perceived recidivism problem. When such laws are passed and the political process is broken, it is necessary for the judicial branch to step forward …

Constitutional Avoidance In The Executive Branch, Trevor W. Morrison

Cornell Law Faculty Publications

When executive actors interpret statutes, the prevailing assumption is that they can and should use the tools that courts use. Is that assumption sound? This Article takes up the question by considering a rule frequently invoked by the courts - the canon of constitutional avoidance.

Executive branch actors regularly use the avoidance canon. Indeed, some of the most hotly debated episodes of executive branch statutory interpretation in recent years - including the initial torture memorandum issued by the Justice Department's Office of Legal Counsel, the President's signing statement regarding the McCain Amendment's ban on the mistreatment of detainees, and the …

Constitutional Avoidance In The Executive Branch, Trevor W. Morrison

Cornell Law Faculty Publications

When executive branch actors interpret statutes, should they use the same methods as the courts? This Article takes up the question by considering a rule frequently invoked by the courts-the canon of constitutional avoidance. In addition to being a cardinal principle of judicial statutory interpretation, the avoidance canon also appears regularly and prominently in the work of the executive branch. It has played a central role, for example, in some of the most hotly debated episodes of executive branch statutory interpretation in the "war on terror." Typically, executive invocations of avoidance are supported by citation to one or more Supreme …

Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults

ExpressO

The Article argues in favor of shifting the balance in federal sentencing toward a more indeterminate system. By exploring the post-Booker legal landscape at both the federal and state levels, the Article asserts that the judiciary's continued reliance on the “advisory" Guidelines has practically changed federal sentencing procedures very little in form or function. Accordingly, the Article proffers that, rather than insisting upon the Guidelines' immutability, federal sentencing would do well to reflect upon its own history, and the evolution of its state counterparts.

Tough Talk From The Supreme Court On Free Speech: The Illusory Per Se Rule In Garcetti As Further Evidence Of Connick’S Unworkable Employee/Citizen Speech Partition, Sonya K. Bice

ExpressO

Garcetti v. Ceballos was intended to clear up an area of First Amendment law so murky that it was the source not only of circuit splits but also of intra-circuit splits—panels from within the same circuit had arrived at opposite results in nearly identical cases. As it turned out, the Supreme Court itself was as splintered as the circuits. Of all the previously argued cases that remained undecided during the Court’s transition involving Justice O’Connor’s retirement and Justice Alito’s confirmation, Garcetti was the only one for which the Court ordered a second argument. This suggested to some that without a …

Privatizing Eminent Domain: The Delegation Of A Very Public Power To Private, Non-Profit And Charitable Corporations, Asmara Tekle Johnson

ExpressO

In an age of privatization of many governmental functions such as health care, prison management, and warfare, this Article poses the question as to whether eminent domain should be among them. Unlike other privatized functions, eminent domain is a traditionally governmental and highly coercive power, akin to the government’s power to tax, to arrest individuals, and to license. It is, therefore, a very public power.

In particular, the delegation of this very public power to private, non-profit and charitable corporations has escaped the scrutiny that for-profit private actors have attracted in the wake of the U.S. Supreme Court’s decision in …

Separation Of Powers And The Governor's Office In West Virginia: Advocating A More Deferential Approach To The Chief Executive From The Judiciary, Jason C. Pizatella

West Virginia Law Review

No abstract provided.

The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein

ExpressO

In 1992, Lucas v. South Carolina Coastal Council held that governments must provide compensation to landowners whenever regulations deprive land of all economically beneficial use, unless the restrictions inhere in background principles of the state’s law of property and nuisance. Such background principles, the Court added, may evolve in accordance with new knowledge. Thus, nuisance became “new” in two critical respects: it expanded from offense to affirmative defense, and it explicitly recognized that new learning continuously redefines the boundaries of nuisance. More than a dozen years have passed since Lucas, and much is new: The years have brought a shift …

Calling The United States' Bluff: How Sovereign Immunity Undermines The United States' Claim To An Effective Domestic Human Rights System, Denise L. Gilman

ExpressO

This article challenges the claims made by the United States that the civil rights system in this country adequately protects human rights, making it unnecessary for the United States to take on additional international human rights commitments. Specifically, the article uses international human rights law and comparative law to analyze the broad sovereign immunity doctrines that protect government actors in the United States from suits for damages even where constitutional violations are in play.

Redefining The Right To Be Let Alone: Privacy Rights And The Constitutionality Of Technical Surveillance Measures In Germany And The United States, Nicole E. Jacoby

ExpressO

U.S. and German courts alike long have struggled to find the proper balance between protecting the privacy rights of criminal suspects and granting law enforcement officials the adequate tools to fight crime. The highest courts in each country have produced different paradigms for determining where the public sphere ends and the private sphere begins. In a series of cases, the U.S. Supreme Court has inquired whether a criminal defendant had a reasonable expectation of privacy when the state conducted a warrantless search of the suspect’s person, premises, or belongings. Germany’s Federal Constitutional Court, in contrast, has asked whether an investigative …