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Criminal Aliens Get Pinched: Sandoval V. Reno, Aedpa's And Iirira's Effect On Habeas Corpus Jurisdiction, Matthew J. Droskoski

Villanova Law Review (1956 - )

No abstract provided.

Nostalgic Federalism, Judith Olans Brown, Peter D. Enrich

UC Law Constitutional Quarterly

Among the most significant decisions of the Supreme Court over the past decade have been those limiting the scope of congressional authority to act in ways that infringe on the responsibilities and prerogatives of the states. In this article, we review four clusters of such cases - those constraining Congress' powers under the Commerce Clause, those refraining the parameters of section five of the Fourteenth Amendment, cases clarifying the limits on federal authority implicit in the Tenth Amendment, and those expanding the reach of state sovereign immunity. Despite the doctrinal diversity among these cases, the Authors argue that they all …

Vehicle Searches – The Automobile Exception: The Constitutional Ride From Carroll V. United States To Wyoming V. Houghton, Martin L. O'Connor

Touro Law Review

No abstract provided.

Due Process, Kathleen Byrne

Touro Law Review

No abstract provided.

The Evolving Police Power: Some Observations For A New Century, Glenn H. Reynolds, David B. Kopel

UC Law Constitutional Quarterly

The conventional wisdom about the scope of state police powers goes like this: in the early days of the Republic, legitimate regulation existed only to prevent concrete harm to specified interests. Sometime around the previous turn of the century, the scope of state police powers expanded; states could regulate as they chose so long as they claimed to be working to promote the public safety, welfare, or morality. This article examines a number of recent state constitutional decisions having to do with sodomy, parenting, marriage, and procreation and argues that in deciding these cases the courts are returning to the …

Stopping Hate Without Stifling Speech: Re-Examining The Merits Of Hate Speech Codes On University Campuses, Catherine B. Johnson

Fordham Urban Law Journal

This Note explores legislative attempts to help reduce incidents of hate speech on university campuses. It begins by analyzing the rise in hate speech codes at public universities and examining two U.S. Supreme Court decisions in R.A.V. v. City of St. Paul and Wisconsin v. Mitchell. The author argues that a hate speech code that implements forward-looking, long-term education objective would work towards stopping hate on campus without violating students' First Amendment rights. This Note reaches the conclusion that a narrowly drawn hate speech code based on recognized First Amendment exceptions, implemented along with with education initiatives, could facilitate the …

Federal Habeas In The Information Age, Wayne A. Logan

Scholarly Publications

One would be hard-pressed to identify a more extolled, and storied, aspect of the Anglo-American legal tradition than the writ of habeas corpus. Tracing its lineage back to the Magna Carta, the Great Writ was so revered by the Framers of the U.S Constitution that they expressly prohibited its suspension except in times of extreme governmental distress. Writing in 1868, Chief Justice Salmon Chase characterized habeas as "the most important human right in the Constitution," the ''best and only sufficient defense of personal freedom." Justice Brennan, writing almost one hundred years later, observed that the history of habeas "is …

Coercion, Pop-Psychology, And Judicial Moralizing: Some Proposals For Curbing Judicial Abuse Of Probation Conditions, Andrew Horwitz

Law Faculty Scholarship

No abstract provided.

The Ex Post Facto Clause, Paul C. Giannelli

Faculty Publications

No abstract provided.

The Constitutional Legacy Of Chief Justice Brian Dickson, Robert J. Sharpe

Osgoode Hall Law Journal

Chief Justice Brian Dickson played a central role in the elaboration of the fundamental values of the Canadian Constitution. He took a balanced approach to federalism, favouring neither federal nor provincial claims and inviting cooperation through overlapping jurisdiction. Dickson transformed the rule of law from a background value to an operative constitutional principle. His judgments on the rights of minorities reflect a remarkable empathy for the plight of the disadvantaged. Democracy informed all aspects of his constitutional thinking. Dickson rejected the contention that judicial review is anti-democratic, and his constitutional legacy reflects a sustained effort to harmonize all four fundament …

Shared Constitutional Interpretation, Michael C. Dorf, Barry Friedman

Cornell Law Faculty Publications

In United States v. Dickerson the Supreme Court reaffirmed its decision in Miranda v. Arizona, stating that it was a 'constitutional decision' and, thus, not subject to congressional overruling. At the same time, the Dickerson Court reiterated Miranda's "invitation" to "Congress and the States to . . . search for . . . other procedures which are at least as effective" as the Court's prescribed warnings in protecting the suspect's rights.

This article uses Dickerson as a lens through which to examine the possibilities of shared constitutional interpretation. After all, the Court that decided Dickerson has, in recent years, been …

Toward The Restorative Constitution: A Restorative Justice Critique Of Anti-Gang Public Nuisance Injunctions, Joan W. Howarth

Scholarly Works

Gang members from elsewhere congregated on lawns, on sidewalks, and in front of apartment complexes at all hours. They displayed a casual contempt for notions of law, order, and decency -- openly drinking, smoking dope, sniffing toluene, and even snorting cocaine laid out in neat lines on the hoods of residents' cars. San Jose prosecutors responded by obtaining and enforcing a broad injunction against the gangs and their members, based on the finding that the gangs' activities constituted a public nuisance. California prosecutors have sought such anti-gang public nuisance injunctions since 1987. Their constitutionality was in doubt for ten years …

The Constitutionality Of The Driver’S Privacy Protection Act: A Fork In The Information Access Road, Angela R. Karras

Federal Communications Law Journal

The Driver's Privacy Protection Act, instituted in 1997, regulates the disclosure of personal information in motor vehicle records. New controversy surrounds it today as the U.S. Supreme Court evaluates the arguments presented in November 1999 regarding its constitutionality. A split among circuit courts, coupled with the tremendous growth in technology and subsequent new in-roads for information access, draw increased attention toward the Act. The concern for information access in light of the Act, however, reaches beyond the courts' elucidated concerns about dual sovereignty and the public's right to privacy. This Note argues that there is a forgotten argument: the Act's …

Reclaiming Our Public Schools: A Proposal For School-Wide Drug Testing, Joanna Raby

Cardozo Law Review

No abstract provided.

The Religious Liberty Protection Act: The National League Of Cities' Perspective, Susan M. Parnas

Cardozo Law Review

No abstract provided.

The New Attacks On Religious Freedom Legislation, And Why They Are Wrong, Thomas C. Berg

Cardozo Law Review

No abstract provided.

Staking Out The Border Between Comandeering And Conditional Preemption: Is The Driver's Privacy Protection Act Constitutional Under The Tenth Amendment?, Rachel F. Preiser

Michigan Law Review

Congress passed the Driver's Privacy Protection Act of 1994 ("DPPA") in response to state sales of personal information contained in motor vehicle records to individuals and to direct marketing companies who use it to identify select groups of prospective customers for particular products. Thirty-four states sell their department of motor vehicles ("DMV") records to individual citizens and to direct marketers, essentially allowing their unregulated distribution to any party seeking them. This practice of selling and distributing personal information has serious implications for the privacy and safety of individual citizens. In considering the DPP A, Congress dwelt in particular on the …

Tzemach V. Minister Of Defense, Itzchak Zamir, Aharon Barak, Dov Levin, Theodor Or, Eliahu Mazza, Mishael Cheshin, Tova Strasberg-Cohen, Dalia Dorner, Jacob Turkel, Dorit Beinisch, Yaakov Kedmi

Translated Opinions

Facts: The petitioners, Members of Knesset, reserve military officers, and student organizations, challenged a practice in which the Minister of Defense routinely grants deferrals of and exemptions from required military service to ultra-Orthodox Jewish Yeshiva students who engage in full-time religious study. They claimed the exemptions, granted to an ever-growing percentage of enlistment candidates (8% in the year 1997), violate the principle of equality, exceed the zone of reasonableness, and are disproportionate. They further claimed that the Minister of Defense lacks the authority to regulate the matter and that it must be done so through legislation.

Held: The Knesset, not …

Szenes V. Broadcasting Authority, Aharon Barak, Eliahu Mazza, Mishael Cheshin

Translated Opinions

Facts: Chana Szenes, born in Budapest, Hungary in 1921, emigrated to Mandatory Palestine alone at the age of 18. In 1943, during World War II, she enlisted in the British army. In June 1944, Chana Szenes parachuted in Yugoslavia, and crossed the border into Hungary with the aid of partisan groups. The German army captured her almost immediately. Chana Szenes was executed by a German firing squad on November 8, 1944. The current petition concerns the play “The Kastner Trial,” written by respondent no. four. The play, based on the true story of the Kastner affair, was intended to be …

Liberty Interests In The Preventive State: Procedural Due Process And Sex Offender Community Notification Laws, Wayne A. Logan

Scholarly Publications

No abstract provided.

The American Founders' Responsibility, Ralph Lerner

Washington and Lee Law Review

No abstract provided.

Invading An Article Iii Court's Inherent Equitable Powers: Separation Of Powers And The Immediate Termination Provisions Of The Prison Litigation Reform Act, Theodore K. Cheng

Washington and Lee Law Review

No abstract provided.

The Standing Of The United States: How Criminal Prosecutions Show That Standing Doctrine Is Looking For Answers In All The Wrong Places, Edward A. Hartnett

Michigan Law Review

The Supreme Court insists that Article III of the Constitution requires a litigant to have standing in order for her request for judicial intervention to constitute a "case" or "controversy" within the jurisdiction of a federal court; it also insists that the "irreducible constitutional minimum" of standing requires (1) that the litigant suffer an "injury in fact"; (2) that the person against whom the judicial intervention is sought have caused the injury; and (3) that the requested judicial intervention redress the injury. The requisite injury in fact, the Court repeatedly declares, must be "personal," "concrete and particularized," and "actual or …

Denial Of Permission To "Take" An Endangered Species Will Amount To A "Taking" Under The Fifth Amendment In Limited Situations, Monica L. Mason

University of Arkansas at Little Rock Law Review

No abstract provided.

Roger Williams's Gift: Religious Freedom In America, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Administrative Takings: A Realist Perspective On The Practice And Theory Of Regulatory Takings Cases, David A. Westbrook

Journal Articles

No abstract provided.

California's Sexually Violent Predator Act: The Role Of Psychiatrists, Courts, And Medical Determinations In Confining Sex Offenders, Carolyn B. Ramsey

UC Law Constitutional Quarterly

This article explores tensions between law and psychiatry after the California Supreme Court's affirmation of the Sexually Violent Predator Act ("SVPA")-a statute providing for the involuntary civil commitment of sex offenders at the end of their prison terms. The United States Supreme Court upheld a similar Kansas law in 1997. Following a brief discussion of the SVPA's constitutionality, the article considers three issues in greater detail: (1) the sex offender's right to treatment during civil confinement, (2) potential problems with finding a right to refuse treatment, and (3) the need to reconcile the standard for civil confinement under the SVPA …

Safeguarding Constitutional Rights: The Uses And Limits Of Prophylactic Rules, Brian K. Landsberg

McGeorge School of Law Scholarly Articles

No abstract provided.

Section Three Of The Defense Of Marriage Act: Is Marriage Reserved To The States, Kristian D. Whitten

UC Law Constitutional Quarterly

It seems clear that the Framers of the Constitution of the United States believed that laws defining and regulating marriage were among the "numerous and indefinite" powers reserved to the states. Early U.S. Supreme Court decisions echoed that sentiment, and as recently as United States v. Lopez, the Court has cited regulation of domestic relations as a quintessentially state power. In 1996 Congress and the President reacted to the possibility that Hawaii might license same-sex marriages by enacting the Defense of Marriage Act, Section 3 which defines the words "marriage" and "spouse" for all federal laws, regulations and programs. This …

The Prison Litigation Reform Act: Striking The Balance Between Law And Order, Peter Hobart

Villanova Law Review (1956 - )

No abstract provided.