Digital Commons Network^™

Privacy Please — Direct Observation Drug Testing & Invasion Of Privacy, Elizabeth Black

University of Cincinnati Law Review

No abstract provided.

The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker

Northwestern University Law Review

The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. …

Solving The Procedural Puzzles Of The Texas Heartbeat Act And Its Imitators: New York Times V. Sullivan As Historical Analogue, Charles W. "Rocky" Rhodes, Howard M. Wasserman

Faculty Publications

The Texas Heartbeat Act (S.B. 8) prohibits abortions following detection of a fetal heartbeat while delegating exclusive enforcement through private civil actions brought by “any person,” regardless of injury, for statutory damages of a minimum of $10,000 per prohibited abortion. Texas sought to impose costly litigation and potentially crippling liability on reproductive health providers and rights advocates, with the hope of stopping abortion in the state. Prior to Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade and eliminating constitutional protection for abortion, the law represented a unique threat to reproductive freedom. But states are spreading S.B. 8’s exclusive …

Vox And Spanish Nationalism: The Constitutional Processes For The Elimination Of Regional Autonomy, Noah Halterman-Mitchell

Independent Study Project (ISP) Collection

After the death of Francisco Franco and the creation of the modern Spanish State, hard-core right-wing Spanish nationalism disappeared from the political spectrum. Spain and Portugal avoided the lure of far right-wing political tendencies to which the rest of Europe fell victim. Until recently, VOX, a far right-wing party, gained seats in Parliaments at the Autonomous Community level and in the Spanish National Parliament.

VOX believes in a mono-national state, a Spanish State, rather than a state composed of different nationalities such as Basque, Catalan, or Galician. In order to achieve their desired vision of the Spanish State, VOX advocates …

Bringing Congress And Indians Back Into Federal Indian Law: The Restatement Of The Law Of American Indians, Kirsten Matoy Carlson

Washington Law Review

Congress and Native Nations have renegotiated the federal-tribal relationship in the past fifty years. The courts, however, have failed to keep up with Congress and recognize this modern federal-tribal relationship. As a result, scholars, judges, and practitioners often characterize federal Indian law as incoherent and inconsistent. This Article argues that the Restatement of the Law of American Indians retells federal Indian law to close the gap between statutory and decisional law. It realigns federal Indian law with the modern federal-tribal relationship negotiated between Congress and tribal governments. Consistent with almost a half-century of congressional law and policy, the Restatement clarifies …

Assessing The Constitutional Validity Of Substantiation Laws For Medical Device Safety And Effectiveness Under The Medical Devices Regulations And The Food And Drugs Act, Victoria Kongats

LLM Theses

This thesis examines federal scientific evidence requirements for medical device safety and effectiveness under the mainstream market entry licensing pathway under Part 1 of the Medical Devices Regulations, and under the new ‘agile’ market entry pathway, the Advanced Therapeutic Products Amendments, which amended the Food and Drugs Act. Apart from a narrow category of medical devices (near patient in vitro diagnostic devices), scientific evidence requirements are vague and do not enumerate explicit expectations for methodologically rigorous forms of scientific evidence. Medical device safety and effectiveness could be more predictable with explicit expectations for scientific rigour. The thesis analyzes if this …

A Second Look For Children Sentenced To Die In Prison, Kathryn E. Miller

Articles

Scholars have championed “second look” statutes as a decarceral tool. Second look statutes allow certain incarcerated people to seek resentencing after having served a portion of their sentences. This Essay weighs the advantages and disadvantages of these statutes as applied to children sentenced to die in prison and argues that focusing on this small, discrete group may be a digestible entry point for more conservative states who fear widespread resentencing. Moreover, because early data indicates that children convicted of homicide and released as adults have very low recidivism rates, second look beneficiaries are likely to pose little threat to public …

Climate Change Adaptation As A Problem Of Inequality And Possible Legal Reforms, David A. Dana

Northwestern University Law Review

Climate change will necessitate adaptation in all parts of the United States, but some individuals and localities will be better able to adapt than others. Wealth inequalities among individuals and localities already are translating—and will continue to translate—into inequalities between the rich and poor in their capacity to adapt. Current federal disaster aid programs and policies exacerbate these inequalities by favoring the wealthy, and future government resource management decisions and investments also may broaden the gap between rich and poor in terms of the economic and other costs they will bear from climate change. Some have suggested broadening Takings Clause …

Property Law And Inequality: Lessons From Racially Restrictive Covenants, Carol M. Rose

Northwestern University Law Review

A long-standing justification for the institution of property is that it encourages effort and planning, enabling not only individual wealth creation but, indirectly, wealth creation for an entire society. Equal opportunity is a precondition for this happy outcome, but some have argued that past inequalities of opportunity have distorted wealth distribution in contemporary America. This article explores the possible role of property law in such a distortion, using the historical example of racially restrictive covenants in the first half of the twentieth century. I will argue that the increasing professionalization and standardization of real estate practices in that era included …

Make Pennsylvania Free Again, Margaret Riley

The Compass

The author created this paper for a class assignment testing students’ knowledge of constitutional law. The assignment was to write a legal brief addressing the constitutionality of a statewide mask mandate during the COVID-19 pandemic. COVID-19 is an airborne disease that can be transmitted from person to person up to six feet apart. The hypothetical facts provided for this brief were that a suit was filed in Pennsylvania state court by a group of individuals in opposition to the state’s mask mandate that was enacted to address the COVID-19 pandemic. The goal of this brief is to demonstrate knowledge of …

Firearms Regulation Through Constitutional Litigation, Hillel Y. Levin, Timothy D. Lytton

Scholarly Works

The U.S. Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen puts the Court firmly in charge of U.S. firearms policy. The decision also marks the beginning of a new era in which constitutional litigation will replace state and federal legislation as the primary means of resolving deep and enduring disagreements over how to regulate guns.

The Court’s Bruen decision contrasts with its decision in Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade, where it declared that “the authority to regulate abortion is returned to the people and their elected representatives.” The …

No-One Receives Psychiatric Treatment In A Squad Car, Judy A. Clausen, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

The Next Fight Over Guns In America, Timothy Zick, Diana Palmer

Popular Media

With Thursday’s Supreme Court decision [in New York State Rifle & Pistol Association Inc. v. Bruen], the only real remaining question is not whether Americans can carry firearms, but where.

Sex Offender Legislation Ex Post Facto: The History And Constitutionality Of Michigan's Sex Offenders Registration Act, Alexander W. Furtaw

Journal of Legislation

Is Michigan’s Sex Offenders Registration Act (“MSORA”) constitutional? Until 2016, courts routinely said yes. In 2016, the Sixth Circuit in Does #1–5 v. Snyder held that the statute was an unconstitutional ex post facto law. In 2021, the Michigan Supreme Court echoed the Sixth Circuit’s holding in People v. Betts. In response, the Michigan legislature passed Public Law 295 of 2020 to amend MSORA, and courts treat the amended act as a “new” statute. Critical analysis of the amended statute’s legality is difficult because the state legislature has seemingly ignored constitutional issues with statutory proposals until after the fact, and …

Behind The Screen: The Constitutionality Of Remote Testimony For Survivors Of Domestic Violence, Rachel Harris

UC Law Constitutional Quarterly

“Before my hearing for my order of protection, I knew that he would try to contact me through other people, send me flowers, send presents to the kids, and all of those things will make me feel powerless when I have to go into court and see him face-to-face. I knew after all of that I would tell the judge that I changed my mind and that I am going to give him another chance. But being on the screen, I tell you, gave me a sense of empowerment. When the judge asked me if I wanted an order of …

Slaying The Serpents: Why Alternative Intervention Is Necessary To Protect Those In Mental Health Crisis From The State-Created Danger “Snake Pit”, Kathleen Giunta

Journal of Law and Policy

The Black Lives Matter protests in 2020 and ongoing reports of police brutality around the United States sparked extensive debate over qualified immunity and the legal protections that prevent police accountability. Individuals experiencing mental health crises are especially vulnerable to police violence, since police officers lack the requisite skills and knowledge to provide effective crisis support during mental health emergencies. Although the state-created danger doctrine was created by the courts as an exception to qualified immunity, it is so rarely applied that individuals harmed or even killed by police are left without legal remedy. This Note explores qualified immunity and …

Separated At Baptism: What The Mortara Case Can Teach Us About The Rejection Of Natural Justice By Integralists And Progressives, Francis J. Beckwith

BYU Law Review

No abstract provided.

Done The Time, Still Being Punished For The Crime: The Irrationality Of Collateral Consequences In Occupational Licensing And Fourteenth Amendment Challenges, Mccarley Maddock

Duke Journal of Constitutional Law & Public Policy Sidebar

Traditionally, retributive models of criminal justice rely on incarceration as punishment for a crime. Under this theory, punishment should end when the offender is released from prison. Yet, a decentralized web of statutes across the United States undermines this commonsense notion and continues to punish formerly incarcerated persons by denying them access to basic services for re-entry into society such as housing, government benefits, and employment. Specifically, thousands of the formerly incarcerated individuals are barred from working in or pursuing a career of their choice based on state statutes that prohibit entry into a given profession based on criminal history. …

The Case For A Liberal Communitarian Jurisprudence, Amitai Etzioni

Journal of the National Association of Administrative Law Judiciary

This article seeks to show that courts face difficulties without a principled, constitutional anchoring for the conception of the common good. Courts could divine the common good from the penumbra of the Fourth Amendment in the same way the Supreme Court created a right to privacy. In addition to creating a “common good” constitutional principle, the judicial branch should establish criteria to determine when this principle should take precedence over individual rights expressly preserved in the Constitution.

In Defense Of Self And Home: The Problems With Limiting Second Amendment Rights For Young Adults Based On Their Age, Andrew White

University of Cincinnati Law Review

No abstract provided.

Standing For Democracy: Is Democracy A Procedural Right In Vacuo? A Democratic Perspective On Procedural Violations As A Basis For Article Iii Standing, Helen Hershkoff, Stephen Loffredo

Buffalo Law Review

Many commentators express concern that democracy in the United States is under threat, whether from the pressure of concentrated wealth and structural racism, government secrecy and authoritarian tendencies, an outdated constitutional structure and old-fashioned corruption, or perhaps a combination of them all. Against this background, this Article argues that the Supreme Court’s treatment of procedural rights for determining standing—the key that opens the door to federal court—is an overlooked factor in contributing to democratic erosion. According to the Court, violation of a congressionally conferred procedural right that does not safeguard some separate, non-procedural, concrete interest of plaintiff—a “procedural right in …

The Burden Of Time: Government Negligence In Pandemic Planning As A Catalyst For Reinvigorating The Sixth Amendment Speedy Trial Right, Sara Hildebrand, Ashley Cordero

Villanova Law Review (1956 - )

No abstract provided.

A Rapid And Accurate Pcr Test For Constitutionality Of Covid-19 Vaccine Mandates: The Appropriate Standard Of Review Adopted By Klaassen V. Trustees Of Indiana University, Natalie Anderson

Villanova Law Review (1956 - )

No abstract provided.

How Favored, Exactly? An Analysis Of The Most Favored Nation Theory Of Religious Exemptions From Calvary Chapel To Tandon, Luray Buckner

Notre Dame Law Review

In this Note, I argue that Justice Kavanaugh’s most favored nation test for religious exemptions actually differs from the one employed by the majority of the Court in Tandon. The majority’s formulation of the test is vague and explicitly requires courts to engage in a fact-intensive comparability analysis. Practically, lower courts applying Tandon to religious exemption questions have exploited this comparability step to rule against religious claimants generally, but more specifically to deny them strict scrutiny. Because the Tandon test was formulated to apply to all free exercise claims, the test is necessarily framed in more general terms and …

The First Amendment Weaponized: When Guns Become Public Discourse, Danny Li

William & Mary Bill of Rights Journal

This Article discusses First Amendment challenges asserted against gun control measures—inside and outside our courts. It explains at length why existing doctrinal approaches to resolving these challenges fail, providing an alternative account of why the First Amendment should not be construed liberally to protect the open carry of firearms. As guns in public spaces and protests become commonplace, we can expect not only continual First Amendment challenges to gun control measures, but also the growing prevalence of First Amendment claims asserted in the public by advocates and gun owners to justify open carry—and the forging of new constitutional meanings and …

Heirs Of An Administration: Unlawful Executive Actions, Jerome Perez

Catholic University Law Review

The Supreme Court of the United States in DHS v. Regents on June 18, 2020, decided to stall the Trump administration from rescinding the Deferred Action for Childhood Arrivals (DACA) policy that the Obama administration created contrary to the Administrative Procedures Act (APA)––even though in 2016 the Supreme Court affirmed a preliminary injunction on the Deferred Action for Parents of Americans (DAPA) policy, which mirrors DACA. This blunder offhandedly sacrifices the Supreme Court’s reputation as nonpartisan by enlisting itself as the future arbiter of administrative issues with self-evident resolutions and deciding contrary to those resolutions to endorse a political agenda. …

Protecting A Woman’S Right To Abortion During A Public Health Crisis, San Juanita Gonzalez

The Scholar: St. Mary's Law Review on Race and Social Justice

As COVID-19 infected our nation, states were quick to issue executive orders restricting various aspects of daily life under the pretense of public safety. It was clear at the outset that certain civil liberties were going to be tested. Among them, the constitutional right to an abortion.

This comment explores Texas’ response to the COVID-19 pandemic and the limitations it imposed on abortion access. It will attempt to address the legitimacy of the “public health concerns” listed in executive orders issued throughout numerous states and will discuss the pertinent legal framework and judicial scrutiny to apply.

According to the Fifth …

Rewriting Whren V. United States, Devon W. Carbado, Jonathan Feingold

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

Locked Out: Sora, Sara And The Need For Defense Counsel Advisals And Judicial Plea Colloquies On Sex Offense-Related Housing Consequences, Matthew Cleaver

Journal of Civil Rights and Economic Development

(Excerpt)

On May 20, 2014, Miguel Gonzalez became eligible for conditional release from prison, having served over two years of his two-and-a-half-year sentence for statutory rape. Instead of releasing Gonzalez, the New York Department of Corrections and Community Supervision (DOCCS) confined Gonzalez for an additional seven and a half months after his initial release date and over four months after his maximum sentence. On February 4, 2015, DOCCS finally released Gonzalez from New York’s Woodbourne Correctional Facility. The sole reason for Gonzalez’s additional confinement was his failure to secure housing that complied with the residency restrictions placed on individuals convicted …

The Local Community Standard: Modernizing The Supreme Court's Obscenity Jurisprudence, Jacob S. Gordon

Helm's School of Government Conference - 2021-2024

Paper presentation on the Supreme Court's outdated case law on obscenity and how it needs to be modernized to in order to combat the dissemination of inappropriate materials in the age of decentralized digital media.