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Pardoning Dogs, Sarah Schindler

Nevada Law Journal

In 1994, the Governor of New Jersey pardoned a dog. In 2017, the Governor of Maine did the same. Each of these dogs had been ordered to be euthanized after killing another dog. While the Governor of New Jersey relied on the property status of the dog in issuing her order, the Governor of Maine relied on his standard pardon power, despite the fact that the being to be pardoned was a dog rather than a human. Both of these cases generated a great deal of popular press and attention, and a few months ago, a New York state senator …

Novel Perspectives On Due Process Symposium: Uncoupling Habeas Corpus And Due Process, Jonathan G. D’Errico

Fordham Law Review Online

This exploration concludes by finding that select elements of the Due Process Clause persist even during suspension and thus restrict otherwise forbidden Executive action. Part I overviews the scope of the Great Writ and the effect of its suspension. Part II details two conflicting views of the writ’s relationship with the constitutional demands of due process. Finally, Part III asserts that suspension quiets some facets of the Due Process Clause but does not entirely extinguish the right to procedural due process.

Cryptography, Passwords, Privacy, And The Fifth Amendment, Gary C. Kessler, Ann M. Phillips

Journal of Digital Forensics, Security and Law

Military-grade cryptography has been widely available at no cost for personal and commercial use since the early 1990s. Since the introduction of Pretty Good Privacy (PGP), more and more people encrypt files and devices, and we are now at the point where our smartphones are encrypted by default. While this ostensibly provides users with a high degree of privacy, compelling a user to provide a password has been interpreted by some courts as a violation of our Fifth Amendment protections, becoming an often insurmountable hurdle to law enforcement lawfully executing a search warrant. This paper will explore some of the …

Law Enforcement Welfare Checks And The Community Caretaking Exception To The Fourth Amendment Warrant Requirement, Andrea L. Steffan

Loyola of Los Angeles Law Review

No abstract provided.

A Too Permeating Police Surveillance: Consumer Genetic Genealogy And The Fourth Amendment After Carpenter, Michael I. Selvin

Loyola of Los Angeles Law Review

No abstract provided.

The Iccpr, Non-Self-Execution, And Daca Recipients' Right To Remain In The United States, Timothy E. Lynch

Faculty Works

The United States is a party to the International Covenant on Civil and Political Rights (ICCPR). Article 12.4 states, “No one shall be arbitrarily deprived of the right to enter his own country.” Citizens clearly enjoy the rights of Article 12.4, but this Article demonstrates that this right reaches beyond the citizenry. Using customary methods of treaty interpretation, including reference to the ICCPR’s preparatory works and the jurisprudence of the Human Rights Committee, I demonstrate that Article 12.4 also forbids states from deporting long-term resident non-citizens – both documented and undocumented – except under the rarest circumstances. As a result, …

Symposium: Pandemics And The Constitution: Calling Their Own Shots: Governors' Emergency Declarations During The Covid-19 Pandemic, Maggie Davis, Christine Gentry, Trudy Henson

ConLawNOW

This paper outlines governors’ powers to combat public health emergencies, and then analyzes specific measures taken by the states in response to the COVID-19 pandemic. State powers to quarantine, isolate, and take other measures to protect the public health and welfare are well-established, going back to the police power reserved for states in the Tenth Amendment and recognized by the U.S. Supreme Court over one hundred years ago. Additionally, most state constitutions and statutes specifically grant governors authority to take a variety of protective measures during emergencies. While large-scale quarantine and isolation orders have not been previously implemented in the …

A Different Kind Of Prisoner's Dilemma: The Right To The Free Exercise Of Religion For Incarcerated Persons, Daniel T. Judge

Notre Dame Law Review

Part I will lay the foundation for the constitutional right to freedom of religion in the United States. It will explain how the Framers understood the right in the lead up to, and at the time of, the ratification of the Free Exercise Clause as part of the Bill of Rights. Part I will also address more modern advances in religious liberty protections for prisoners before discussing two recent milestones: the Religious Land Use and Institutionalized Persons Act and the Supreme Court’s decision in Holt v. Hobbs. Part II addresses the right to freedom of religion internationally. It begins …

Arbitrary Arbiters: Evaluating The Right To Be Informed Of Eligibility For Discretionary Relief In Removal Proceedings, Michael Jordan

William & Mary Bill of Rights Journal

No abstract provided.

Assault On The Constitution: Why The Southern District Of California Got It Right, Robert F. Brawner Ii

Georgia State University Law Review

This Note will examine and analyze the tests applied by federal courts that have heard similar cases, culminating with the recent decision in the Southern District of California, Duncan v. Becerra. In Part I, this Note provides the context surrounding the current bill being considered by Congress and examines Supreme Court and federal circuit court cases addressing this issue. Part II provides analysis of application of the tests applied by the federal courts. Part III argues that the Supreme Court should adopt Judge Benitez’s reasoning laid out in Duncan and apply his test to any Second Amendment challenge to …

Beat The Heat: Texas’S Need To Reduce Summer Temperatures In Offender Housing, Mary E. Adair

St. Mary's Law Journal

The Texas Department of Criminal Justice’s lack of air conditioning in offender housing areas is a violation of the Eighth Amendment and deprives offenders of humane living conditions. Unlike most Texans, offenders housed in the TDCJ are unable to adequately protect themselves from the higher, prolonged summer temperatures. Most Texas prisons do not provide air conditioning or other types of cooling systems in offender housing areas, so offenders are at the mercy of the elements with little protection against heat-related illnesses. Several jurisdictions, other than Texas, have recognized extreme temperatures in housing areas can lead to constitutional violations because the …

Youth Suffrage: In Support Of The Second Wave, Mae C. Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens

Akron Law Review

The 19th Amendment is talked about as central to our nation’s suffrage story, with many situating women's suffrage work within feminist theory "wave" discourse. However, with this telling, scholars and others too frequently overlook young voters and efforts relating to their election law rights. This article seeks to remedy this oversight and complicate the voting rights canon, in addition to supporting efforts of today’s youth voting rights advocates. It does so by turning our attention to youth suffrage movements, which we argue also can be examined by way of a framework of "waves." The first to offer such an historical …

Re-Charting The Remedial Course For Section 11(B) Violations Post-Jordan, Andrew Pilla, Levi Vandersteen

Osgoode Hall Law Journal

In R v Jordan, the Supreme Court of Canada adopted a new framework for establishing violations of the right to be tried within a reasonable time under section 11(b) of the Charter. It did not, however, adopt a new approach to the remedy applicable thereafter. Since the 1987 decision R v Rahey, the only remedy for unreasonable delay has been a stay of proceedings. This article contends that this “automatic stay rule” must be revisited post-Jordan. It does so by conceptualizing Jordan as a shift from an “interest balancing” framework—where individual and societal interests are …

Symposium: Pandemics And The Constitution: Tiered Scrutiny In A Pandemic, Jeffrey D. Jackson

ConLawNOW

During this spring of COVID-19, Americans are facing numerous state and local government-imposed restrictions that would have seemed implausible a few short months ago. While many of these restrictions seem to be unquestionably warranted, there have been others that have the potential to negatively impact fundamental rights. From abortion restrictions to gun control, these actions threaten liberty in the name of police powers. During this time of crisis, there is a need for courts to be especially vigilant. Throughout the nation’s history, the concept of emergency power has been used to justify restrictions on the rights of Americans, with tragic …

Laboratory Of Democracy: How The District Of Columbia Is Using The Home Rule Act To Achieve Elements Of Statehood, Walter A. Smith Jr., Kevin M. Hilgers

University of the District of Columbia Law Review

On January 3, 2019, Congresswoman Eleanor Holmes Norton, the District of Columbia's (the "District') nonvoting delegate to the House of Representatives, reintroduced the Washington, D.C. Admission Act, which would make much of the District the 51st state. While Norton had made a tradition of opening each new Congress by introducing D.C. democracy bills, the context this time gave District advocates more reason to be optimistic. With the Democrats gaining control of the House, the bill gained a record 155 original cosponsors, and Representative Elijah Cummings, chair of the House Committee on Oversight and Reform, committed to holding a hearing on …

“We Can’T Just Throw Our Children Away”: A Discussion Of The Term-Of-Years Sentencing Of Juveniles And What Can Be Done In Texas, Anjelica Harris

Texas A&M Law Review

In the words of Supreme Court Justice Elena Kagan, children are different. The issue of how to sentence juvenile offenders has long been controversial. Although psychology acknowledges the connection between incomplete juvenile brain development and increased criminality, the justice system lags behind in how it handles juvenile offenders. A prime example is the case of Bobby Bostic, who at the age of sixteen was charged with eighteen offenses and sentenced to 241 years in prison. This sentence, known as a term-of-years or virtual life sentence, essentially guarantees that no matter what Bobby does or who he proves himself to be …

Symposium: Pandemics And The Constitution: Why The Special Needs Doctrine Is The Most Appropriate Fourth Amendment Theory For Justifying Police Stops To Enforce Covid-19 Stay-At-Home Orders, Henry F. Fradella

ConLawNOW

Despite the fact that the steps the federal and state governments take to curtail the spread of the viral infection are presumably taken in the best interest of public health, governmental actions and actors must comply with the U.S. Constitution even during a pandemic. Some public health measures, such as stay-at-home orders, restrict the exercise of personal freedoms ranging from the rights to travel and freely associate to the ability to gather in places of worship for religious services. This Essay explores several completing doctrines that might justify the authority of law enforcement to stop people who are out of …

Constitutional Conflict And Sensitive Places, Darrell A. H. Miller

William & Mary Bill of Rights Journal

No abstract provided.

Political And Non-Political Speech And Guns, Gregory P. Magarian

William & Mary Bill of Rights Journal

No abstract provided.

Doctrinal Dynamism, Borrowing, And The Relationship Between Rules And Rights, Joseph Blocher, Luke Morgan

William & Mary Bill of Rights Journal

The study of “Rights Dynamism,” exemplified in Timothy Zick’s new book on the First Amendment’s relationship with the rest of the Bill of Rights, can enrich our understanding of constitutional rights. It also opens a door to another potentially fruitful arena: what we call “Doctrinal Dynamism.” Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another’s doctrinal rules, even when the rights themselves do not intersect directly in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests underlying …

Big M’S Forgotten Legacy Of Freedom, Jamie Cameron

Articles & Book Chapters

Part of a collection of papers on section 2’s “forgotten freedoms” (forthcoming (2020), 100 S.C.L.R.(2d)), “Big M’s Forgotten Legacy of Freedom” returns to the Supreme Court of Canada’s foundational concept of freedom as the absence of coercion or constraint. That early and important legacy of freedom under the Charter failed to inspire and influence the evolution of section 2, especially section 2(b)’s guarantee of expressive freedom and section 2(d)’s guarantee of associational freedom. This paper both claims and demonstrates that section 2’s fundamental freedoms have been less meaningful as a result. In doing so, it places emphasis on …

Extraterritorial Rights In Border Enforcement, Fatma E. Marouf

Washington and Lee Law Review

Recent shifts in border enforcement policies raise pressing new questions about the extraterritorial reach of constitutional rights. Policies that keep asylum seekers in Mexico, expand the use of expedited removal, and encourage the cross-border use of force require courts to determine whether noncitizens who are physically outside the United States, or who are treated for legal purposes as being outside even if they have entered the country, can claim constitutional protections. This Article examines a small, but growing body of cases addressing these extraterritoriality issues in the border enforcement context, focusing on disparities in judicial analyses that have resulted in …

Petitioners' Reply Memorandum In Support Of Their Emergency Petetion For A Writ Of Habeas Corpus, Joseph Mead, David J. Carey, Freda J. Levenson, David A. Singleton, Mark A. Vander Laan, Michael L. Zuckerman

Law Faculty Briefs and Court Documents

In the roughly 120 hours since Petitioners filed their emergency petition for a writ of habeas corpus, the death toll at Elkton has doubled, and the number of BOP-confirmed COVID-19 cases among prisoners has tripled. About three dozen corrections staff have tested positive for the virus, a number that has also tripled since this case was filed. Elkton now accounts for more than one-third of all prisoner deaths from COVID-19 in federal prisons nationwide, and over half of the COVID-19 deaths in Columbiana County, making it one of the deadliest places a person can live in the current pandemic. According …

State V. Pinkham: Erosion Of Meaningful Forth Amendment Protection For Vehicle Stops In Maine?, Roger M. Clement Jr.

Maine Law Review

In State v. Pinkham, the Maine Supreme Judicial Court, sitting as the Law Court, held that a police officer's stop of a motorist to inquire and advise about the motorist's improper-but not illegal-lane usage did not necessarily violate the Fourth Amendment's proscription against unreasonable seizures. The Pinkham decision is the first time that the Law Court has validated the stop of a moving vehicle in the absence of either a suspected violation of law or an imminent, ongoing threat to highway safety.
This Note considers whether the Law Court was correct in sustaining the police officer's stop of Ronald Pinkham. …

Brief Amici Curiae On Behalf Of Constitutional Law Professors A.E. Dick Howard, Russell A. Miller, And Carl W. Tobias: Lynchburg Range & Training Llc V. Northam, A.E. Dick Howard, Russell A. Miller, Carl W. Tobias

Scholarly Articles

Through Executive Order No. 53, the Governor of Virginia has acted in a manner consistent with the Constitution of Virginia in temporarily limiting access to indoor, nonessential businesses during the COVID-19 health crisis. Nothing in Article I, § 13 should be read to, nor was intended to, prevent the Governor from taking neutral, commonsense actions to protect the public health in the face of a nationwide pandemic.

Debt Bondage: How Private Collection Agencies Keep The Formerly Incarcerated Tethered To The Criminal Justice System, Bryan L. Adamson

Northwestern Journal of Law & Social Policy

This Article examines the constitutionality of statutes which allow courts to transfer outstanding legal financial obligations to private debt collection agencies. In Washington State, the clerk of courts can transfer the legal financial obligation of a formerly incarcerated person if he or she is only thirty days late making a payment. Upon transfer, the debt collection agencies can assess a “collection fee” of up to 50% of the first $100.000 of the unpaid legal financial obligation, and up to 35% of the unpaid debt over $100,000. This fee becomes part of the LFO debt imposed at sentencing, and like that …

Dreamers Interrupted: The Case Of The Rescission Of The Program Of Deferred Action For Childhood Arrivals, Rachel F. Moran

Faculty Scholarship

In 1994, California voters went to the polls to pass Proposition 187, a measure designed to deter unauthorized immigration by denying a range of public benefits to the undocumented. Twenty-five years later, undocumented immigration remains a deeply polarizing issue in our country. But if the political discourse seems similar, the civil rights toolkit is not. In an earlier era, equal protection arguments had pride of place, but today, advocates rely heavily on structural and institutional arguments to constrain official discretion.

In 1982, the United States Supreme Court’s decision in Plyler v. Doe declared unconstitutional a Texas statute that denied undocumented …

Weeding Out Injustice: Amnesty For Pot Offenders, Mitchell F. Crusto

UC Law Constitutional Quarterly

There are a growing number of States that have legalized marijuana, challenging the view that marijuana is a dangerous drug. These States are taking positions relative to both the retroactivity of the new laws and to amelioration of past offenses, which arguably contradict United States Supreme Court decisions on the retroactivity of changes in substantive criminal standards. And, many States recognize that past marijuana laws have greatly contributed to the problems related to a broken criminal justice system, including mass incarceration and racial disparities, particularly to the devastation of communities of color.

In response to these legal developments, this Article …

Abolishing Ice Is Not Enough: Using Conservative Judicial Principles To Protect Unauthorized Immigrants From A "Tyrannical Bureaucracy", Ashley Dylenski

Cardozo Journal of Equal Rights & Social Justice

The note argues that abolishing ICE alone will not resolve the systemic issues plaguing the U.S. immigration system, as the root problem lies in Congress's overdelegation of authority to executive agencies. These agencies, operating under doctrines like plenary power and Chevron deference, wield broad discretion with minimal judicial oversight, leading to inhumane and unpredictable enforcement practices. The analysis advocates for resurrecting the nondelegation doctrine and reasserting congressional authority to restore separation of powers and ensure a more humane and transparent immigration system.

Children's Equality Rights: Every Child's Right To Develop To Their Full Capacity, Nancy E. Dowd

Cardozo Law Review

Children are born equal. Yet as early as eighteen months, hierarchies emerge among children. These hierarchies are not random butfall into patterns by race, gender, and class. They are not caused nor voluntarily chosen by children or their parents. The hierarchies grow, persist, and are made worse by systems and policies created by the state, perpetuating the position of the privileged and continuing the disadvantage of the subordinated. Children's equal right to develop to their capacity is severely undermined by policies and structures that hamper and block the development of some by creating barriers and challenges or failing to support …