Digital Commons Network^™

From The Barrel To The Border: Exploring The Roots And Ramifications Of Gun Trafficking From The United States To Mexico, Alexandra Punishill

CMC Senior Theses

Nowhere is the discussion surrounding gun violence more prominent than in the United States, with the impacts of our gun-friendly culture being felt around the world. This thesis analyzes the dynamics of gun trafficking from the United States to Mexico and sheds light on its role in fueling the epidemic of gun violence south of the border. It is argued that the particular system of federalism adopted by the United States has led to a variety of state-level gun regulations that have shaped domestic gun policy and have had an international impact. Despite Mexico’s persistent efforts to combat the gun …

Indefinite Detention Under Part Xx.1 Of The Criminal Code And Winko V. British Columbia, Jamie Cameron

Articles & Book Chapters

“Indefinite Detention Under Part XX.1 of the Criminal Code and Winko v. British Columbia” is chapter 27 in a textbook titled Canadian Anthology on Mental Health and the Law. It draws on the author’s ten years as a legal member and alternate chair on the Ontario Review Board, as well as on her participation in a research study on perceptions of fairness in ORB proceedings, to provide critical comment on the procedural fairness and constitutionality of forensic detention for mentally disordered criminal offenders (i.e. not criminally responsible (NCR); unfit to stand trial (UST); and dual status offenders …

Punishment After The Punishment: How Deportation Of Juvenile Offenders Violates The Eighth Amendment And International Law, Elisabeth Sethi

Lewis & Clark Law Review

This Comment examines how the United States deviates from most of the Western world by allowing deportation of noncitizen juvenile offenders to be essentially mandatory for a wide number of crimes. Deportation is “mandatory” in the sense that it is often an automatic result with very few options for judges to consider relevant mitigating factors, such as how long the noncitizen has lived in the United States, ties to U.S. citizen family members, or behavior since committing the crime. Deportation of juvenile offenders is applied harshly to both authorized and unauthorized noncitizens, many of whom have lived in the United …

Safe Storage Laws And Self-Defense From Heller To Bruen, Joseph Blocher

Faculty Scholarship

This short Essay, written for a symposium honoring Walter Dellinger, explores one of the most underappreciated—and indefensible—holdings of District of Columbia v. Heller, the landmark Second Amendment case that Walter ably argued for the District. Most scholars have focused on Heller’s announcement of an “individual” right to keep and bear arms for private purposes and its invalidation of the District’s prohibition on handguns. But along the way, almost in passing, the Court also struck down the District’s requirement that firearms be kept “unloaded and dissembled or bound by a trigger lock or similar device.” It did this not by asking …

Bruen's Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger

Faculty Scholarship

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to …

Taking Liberties: The Supreme Court’S New Hierarchy Of Rights And Its Victims, Richard B. Katskee

Faculty Scholarship

The legitimacy of our unelected Supreme Court comes from the nature and structural limitations on judicial power. Courts do not make policy in the abstract. Rather, Article III requires federal judges to decide only real, live disputes, on the facts before them. Stare decisis then prevents the courts from changing legal rules willy-nilly. The big, important changes come instead through collective decision-making by our elected representatives. When courts do break from stare decisis, it is normally to expand protections for the politically disempowered. Those protections then make legislatures more representative and act as brakes on abuses of minorities by an …

State Sovereign Immunity After The Revolution, Ernest A. Young

Faculty Scholarship

The Supreme Court’s 1996 decision in Seminole Tribe v. Florida opened an era of dramatic expansion of states’ sovereign immunity from suits by private parties. Nationalist Justices vigorously contested that expansion, vowing that they would never accept Seminole Tribe’s legitimacy or accord it stare decisis effect. In 2020, however, the unanimous decision in Allen v. Cooper did accept Seminole Tribe’s vision of state immunity, apparently ending the Court’s longstanding and bitter division on this issue. This Article assesses Seminole Tribe as a revolution in legal doctrine that established a new paradigm of state immunity law, analogous to the scientific upheavals …

American Star Chamber: Online Misinformation, Government Intervention, And The Intellectual Matrix Of The First Amendment, Emily E. Burton

Catholic University Journal of Law and Technology

Just as monarchs and clerical authorities struggled to respond to seditious and heretical writings enabled by the invention of the printing press, twenty-first century governments are experiencing a similar information revolution as a result of the digital age and a rising tide of what the United States has labeled online misinformation. Like the printing press, the Internet has enabled the spread of information at an exponentially lower cost and an exponentially higher speed as it extends the ability to publish thoughts and opinions to an increasingly diverse array of individuals. Although this was largely celebrated during the first two decades …

Taking Aim At Shotspotter: Gunshot Surveillance, The Fourth Amendment, And An Argument For Sonic Security, Emily A. Fogg

Oklahoma Law Review

No abstract provided.

Can Policing Be Purged Of White Supremacy? A First Amendment Inquiry, Jessica Tilton

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Police Diversity Theory, Trevor George Gardner

Scholarship@WashULaw

In light of both the tragic death of Tyre Nichols in Memphis at the hands of Black police officers and the mixed results of studies of Black same-race policing, this Article proposes a conceptual framework by which to better understand the utility of police diversity. The framework maps the relational possibilities among three factors: (i) the Black officer’s approach to same-race policing; (ii) the Black officer’s performance in the context of same-race policing; and (iii) the policing priorities of the Black communities the Black officer is taken to represent.

Responsive to the conceptual framework for police diversity theory, the Article …

The Major Questions Doctrine: Unfounded, Unbounded, And Confounded, Ronald M. Levin

Scholarship@WashULaw

As explicated by the Supreme Court in West Virginia v. EPA in 2022, and reaffirmed in Biden v. Nebraska in 2023, the “major questions doctrine” provides that an administrative agency’s rule in a “major” case must rest on “clear congressional authorization.” Many commentators have deplored the major questions doctrine on the basis of its policy consequences. This Article offers a critique of the doctrine from a different angle. It primarily contends that the reasons the Court has given for enforcing the doctrine do not withstand scrutiny, even on their own terms.

In West Virginia and Nebraska, the Court relied heavily …

Second Amendment Immigration Exceptionalism, Pratheepan Gulasekaram

Publications

This Essay critiques the decision to uphold federal gun restrictions on unlawfully present noncitizens on the basis of "immigration exceptionalism." It argues that courts should avoid applying bespoke constitutionalism to criminal laws, including gun laws, simply because the law regulates noncitizens. This Essay shows why such exceptional modes misapprehend long-decided Supreme Court cases and well-established legal doctrine. Further, it warns that an exceptional approach to Second Amendment claims by unlawfully present noncitizens cannot be cabined to either firearms or the unlawfully present. Rather, it portends a wider gulf in constitutional protections for all noncitizens across a variety of fundamental criminal …

Rules & Laws For Civil Actions: 2024 Ed., Stella Burch Elias, Derek T. Muller, Jason Rantanen, Caroline Sheerin, Maya Steinitz

Books

2024 Edition

Rules and Laws for Civil Actions is an open-access resource for law students containing the U.S. Constitution, Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, and selected federal and state statutes. The book was created by a team of faculty members at the University of Iowa College of Law to supplement the study of Civil Procedure, Evidence, Constitutional Law, and other law school courses. In addition to containing the official text, each legal source found in Rules and Laws for Civil Actions is accompanied by an introductory section written by an Iowa …

The Warrant Impact Study: Evaluating The Effects Of Bench Warrants On Individuals And Communities, Patrick C. Brayer

Faculty Works

No abstract provided.

Pandemics Of Limitation Of Rights, Rinat Kitai-Sangero

Touro Law Review

This Article discusses the limitation of rights due to pandemics. It analyzes from a constitutional standpoint the holding of the German Federal Constitutional Court (Das BUNDESVERFASSUNGSGERICHT) from April 2022 as a symptom of moral panic disguised through an analytical process. Though it focuses on this case, it sheds light on the moral panic that characterized many countries’ approaches during the COVID-19 pandemic. On April 27, 2022, the German Federal Constitutional Court held that a provision to provide proof of vaccination against COVID-19, recovery from COVID-19, or a medical exemption to COVID-19 vaccination as a condition of employment in the health …

Is Jacobson V. Massachusetts Viable After A Century Of Dormancy? A Review In The Face Of Covid-19, Sawan Talwar

Touro Law Review

The COVID-19 pandemic has stretched us into the vast unknowns, emotionally, logically, politically, and legally. Relying on their police power, governments inched into the darkness of the powers’ fullest extent, leaving many to wonder whether the exercise of this power was constitutional. This Article examines the extent of the police power that both the federal and state governments have, and how Jacobson v. Massachusetts1 was the “silver bullet” for governments across the United States. Further, this Article provides an overview of police power, and the status of COVID-19 mandates. This Article additionally examines quarantine case law and provides an analysis …

The Constitutionality Of Barring Undocumented Immigrants From Second Amendment Protections, Abby Vorhees

American University Law Review

Under current federal law, undocumented immigrants remain unable to access one of the most fundamental rights contained within our Constitution: the Second Amendment right to keep and bear arms. Several undocumented immigrants have challenged the constitutionality of the federal prohibition (18 U.S.C. § 922(g)(5)(A)), resulting in a three-way circuit split on whether undocumented immigrants are protected by the Second Amendment. The Supreme Court, however, has remained silent on the issue, leaving undocumented immigrants unprotected.

The Supreme Court’s 2022 Second Amendment decision, N.Y. State Pistol & Rifle Ass’n v. Bruen, upended the traditional method of constitutional review, means-end scrutiny, in favor …

“A Hot Day In Iqaluit”? Environmental Rights In Canada’S Constitutional Cul-De-Sac, Stepan Wood

All Faculty Publications

Proposals to include an explicit right to a healthy environment in Canada’s constitution have been advanced since the early 1970s, but Canada is stuck in a decades-long impasse that precludes substantial constitutional amendment. This article uses the metaphor of the cul-de-sac to explore the prospects for legal recognition of environmental rights in this situation. It canvasses past efforts to entrench general and Indigenous environmental rights in Canada’s constitution, introduces culs-de-sac metaphorical and real, and highlights the irony of one commentator’s 2005 quip that it will be “a hot day in Iqaluit” when Canada’s constitution undergoes significant amendment. It then surveys …

Vega V. Tekoh And The Erosion Of Miranda: A Reframing Of Miranda As A Procedural Due Process Requirement, Tess A. Chaffee

University of Cincinnati Law Review

No abstract provided.

Must Courts Recalibrate Tort Law Governing Firearms In Light Of The Second Amendment?, Lars Noah

University of Cincinnati Law Review

The rules governing the scope of liability in cases where firearms cause injuries—some well-established, others fairly novel—help to define the responsibilities of users, owners, and sellers of these popular but dangerous products. As the U.S. Supreme Court has recently expanded an individual’s right to keep and bear arms, some have wondered whether the Second Amendment might operate to limit the reach of these various tort doctrines. Sixty years ago, the Court started to constitutionalize various aspects of state common law, most famously using the First Amendment to limit defamation claims but in other respects as well. A comparable approach to …

Section 230 As Civil Rights Statute, Enrique Armijo

University of Cincinnati Law Review

Many of our most pressing discussions about justice, progress, and civil rights have moved online. Activists advocating for social change no longer need to be in the same physical space to connect with others who share their challenges and aspirations. But the convergence of mobility, connectivity, and technology is not the only reason why. Thanks to Section 230 of the Communications Decency Act’s (“Section 230”) immunity for online platforms, websites, and their hosts, speakers can engage in speech about protest, equality, and dissent without fear of collateral censorship from governments, authorities, and others in power who hope to silence them. …

"There's A New Sheriff In Town": Why Granting Qualified Immunity To Local Officials Acting Outside Their Authority Erodes Constitutional Rights And Further Deteriorates The Doctrine, Josephine Mcguire

William & Mary Bill of Rights Journal

Part I traces the history of qualified immunity and the doctrine’s analytical changes over time, detailing the twofold test as it currently stands. Part II considers Large and Sweetin, comparing the courts’ approaches to essentially similar scenarios and evaluating the differences in outcome. Part III addresses the Supreme Court’s denial of the Large plaintiffs’ petition for certiorari and explicates the “scope of authority” question the Court declined to address. Part IV breaks down the decision in Large and conducts the qualified immunity analysis anew, determining that the court misapplied the doctrine regardless of its failure to consider the scope …

Mama Knows Best: Raffensperger V. Jackson Ushers In A New Framework For Professional Licensing Challenges And Recognizes A Right To Work For Lactation Providers Under The Georgia Constitution’S Due Process Clause, A. Tyler Kelly

Mercer Law Review

“State constitutionalism . . . is . . . vital yet underdeveloped[.]” The right to pursue one’s chosen profession free from unreasonable government interference is inherent in the Georgia Constitution’s Due Process Clause, and a recognition of such economic liberty reappears throughout the jurisprudence of the Supreme Court of Georgia. With the passage of the Patient Protection and Affordable Care Act (ACA) in 2010, the federal government delegated to the states the responsibility of navigating new policy which led insurance companies to reimburse a host of medical services from licensed professionals. At the time of the ACA’s passage, Georgia faced …

Recalibrating Bruen: The Merits Of Historical Burden-Shifting In Second Amendment Cases, Kevin G. Schascheck Ii

Belmont Law Review

After Bruen, the prevailing assumption was that the Second Amendment framework shifted radically for all gun laws. Courts throughout the country have already invalidated key gun safety statutes while applying the new test. However, such holdings fail to grapple with the full weight of Second Amendment doctrines. A proper application of the doctrine in toto will result in no significant changes to the constitutionality of the vast majority of gun laws after Bruen.

This Article explains the underdeveloped interaction between two principal Second Amendment doctrines - presumptions of legal validity and historical analyses. That interaction, framed in its simplest terms, …

Police Officers, Policy, And Personnel Files: Prosecutorial Disclosure Obligations Above And Beyond Brady, Lauren Giles

Fordham Law Review

Police officers play a significant role in the criminal trial process and are unlike any other witness who will take the stand. They are trained to testify, and jurors find them more credible than other witnesses, even though officers may have more incentive to lie than the ordinary witness. Despite the role of police officers in criminal proceedings, state statutes say virtually nothing about evidence used to impeach police officers, often contained in the officer’s personnel file. Worse still, the standard for disclosing information in an officer’s personnel file varies among and within states, resulting in inconsistent Brady disclosures. This …

Press Freedom Under Threat In Europe: Slapps And Democracy, Maya Oleary-Cyr

Claremont-UC Undergraduate Research Conference on the European Union

This paper critically examines the legal systems of European countries and their relationship to press freedom, particularly the vexatious legal threats used by government officials and corporations to silence journalists. These legal threats are known as SLAPPs (strategic lawsuits against public participation) and their use has increased exponentially in the last decade. Although the issue is global, this research analyzes the issue through the lens of Greece, Italy, and Hungary. As member states, each one of these countries has an obligation to uphold the democratic standards put forth by the EU. Journalists are a vital aspect of the democratic process …

Taking Aim At New York's Concealed Carry Improvement Act, Leo Bernabei

Fordham Law Review

In June 2022, the U.S. Supreme Court held in New York State Rifle & Pistol Ass’n v. Bruen that New York’s requirement, which mandated that applicants for concealed carry licenses show proper cause for carrying a handgun in public, violated the Second and Fourteenth Amendments. Responding to the likely increase in individuals licensed to carry handguns in the state, New York enacted the Concealed Carry Improvement Act (CCIA). This law bans all firearms from many places of public congregation, establishes a default rule that firearms are not allowed on private property without the owner or lessee’s permission, and sets additional …

Children Are Different: Jones V. Mississippi, Juvenile Life Without Parole, And Why Youthfulness Matters In Sentencing, Giulia Hintz Mcquirter

MC Law Review

“We are a country of mercy, and we are a country of vengeance, and we live with both at the same time.” This is how Robert Dunham, death penalty expert and Executive Director of the Death Penalty Information Center, describes the United States sentencing system. Battling inside each of us is the desire for people to pay for their wrongdoings, warring against the empathy of our human nature that wants to see the good in people, even criminals.

This internal conflict is rarely on better display than in cases involving child criminals. It is impossible to forget that these children …

Takings In Disguise: The Inequity Of Public Nuisance Receiverships In America’S Rust Belt, Anna Kennedy

Washington and Lee Journal of Civil Rights and Social Justice

Since they were created in the 1980s in Cleveland, Ohio, public nuisance receiverships have spread across the American Rust Belt. This Note critically analyzes the legal implications of public nuisance receiverships, which involve the intrusion onto private property for public purposes. Despite claims that these actions align with exceptions to due process or public nuisance principles, a deeper examination reveals their fundamental nature as government takings of private property. This Note dissects the legal framework within the context of the Fifth Amendment, debunking the applicability of the public nuisance exception, establishing that receiverships constitute takings, and highlighting conflicts with Anti-Kelo …