Digital Commons Network^™

Masterpiece Cakeshop: A Formula For Legislative Accommodations Of Religion, Matthew A. Brown

Akron Law Review

When two core identities clash, such as sexual orientation and religious belief, which one should prevail? I argue that, rather than picking a winner and a loser, the Supreme Court in Masterpiece Cakeshop allowed for a much broader solution than the Court was able to provide—legislative accommodations rooted in tolerance that protect the dignity of same-sex couples and respect sincere religious beliefs.

In Masterpiece Cakeshop, a Colorado baker refused to design a cake for a same-sex wedding based on his religious beliefs. Instead of picking a broad winner and loser, the Supreme Court ruled narrowly by finding the Colorado …

Dna Is Different: An Exploration Of The Current Inadequacies Of Genetic Privacy Protection In Recreational Dna Databases, Jamie M. Zeevi

St. John's Law Review

(Excerpt)

Part I of this Note discusses the fundamental science behind DNA and defines and explains the process of familial DNA searching. Part I also discusses how Carpenter v. United States provides a framework to begin thinking about the unique nature of DNA and privacy implications for its use, and why the revealing nature of this type of data warrants protection. Part II of this Note delves into the lack of constitutional and statutory protections for DNA in recreational DNA databases. First, Part II explains that traditional Fourth Amendment concepts, like search warrants, probable cause, reasonable expectation of privacy, third-party …

Dhs V. Regents Of The University Of California: Administrative Law Concerns In Repealing Daca, Charles Fendrych

Duke Journal of Constitutional Law & Public Policy Sidebar

On its surface, deferred action is simple: it is a decision by Executive Branch officials to postpone deportation proceedings against an individual or group that is otherwise eligible to be removed from the United States.Deferred action is an exercise of the Executive’s inherent authority to manage its policies, but is not expressly grounded in statute Despite this lack of statutory authority, Congress and the Supreme Court have historically recognized deferred action policies. Indeed, records of such Executive discretion date back to the early twentieth century.The Executive, grounding its justification in humanitarian concerns, has continued to institute categorical deferred action programs …

New Media, Free Expression, And The Offences Against The State Acts, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

New media facilitates communication and creates a common, lived experience. It also carries the potential for great harm on an individual and societal scale. Posting integrates information and emotion, with study after study finding that fear and anger transfer most readily online. Isolation follows, with insular groups forming. The result is an increasing bifurcation of society. Scholars also write about rising levels of depression and suicide that stem from online dependence and replacing analogical experience with digital interaction, as well as escalating levels of anxiety that are rooted in the validation expectation of the ‘like’ function. These changes generate instability …

2001 Supreme Court Redux, Mary Stevens

Sustainable Development Law & Policy

No abstract provided.

Next Verse, Same As The First: Inadequacies In The Government's Legal Approach Toward Biotechnology, Kimberly Righter

Sustainable Development Law & Policy

No abstract provided.

Extraterritorial Rights In Border Enforcement, Fatma Marouf

Faculty Scholarship

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 …

Tinker-Ing With Machine Learning: The Legality And Consequences Of Online Surveillance Of Students, Amy B. Cyphert

Nevada Law Journal

All across the nation, high schools and middle schools are quietly entering into contracts with software companies to monitor the online activity of their students, attempting to predict the next school shooter or to intervene with a student who might be contemplating suicide. Systems using algorithms powered by machine learning trawl the Facebook posts of fifteen–year–olds and weed through the Twitter feeds of seventeen–year–olds. When certain keywords or features are flagged, the posts are forwarded to school administrators, who can decide whether the post requires an intervention and whether the student requires discipline. Who (or what) decides what these keywords …

People V. Buza: A Step In The Wrong Direction, Emily R. Pincin

Loyola of Los Angeles Law Review

No abstract provided.

A Suspended Death Sentence: Habeas Review Of Expedited Removal Decisions, Lauren Schusterman

Michigan Law Review

Expedited removal allows low-level immigration officers to summarily order the deportation of certain noncitizens, frequently with little to no judicial oversight. Noncitizens with legitimate asylum claims should not find themselves in expedited removal. When picked up by immigration authorities, they should be referred for a credible fear interview and then for more thorough proceedings.

Although there is clear congressional intent that asylum seekers not be subjected to expedited removal, mounting evidence suggests that expedited removal fails to identify bona fide asylum seekers. Consequently, many of them are sent back to persecution. Such decisions have weighty consequences, but they have remained …

Kansas V. Glover And The Issue Of Reasonable Suspicion, Zach Kumar

Duke Journal of Constitutional Law & Public Policy Sidebar

It is settled law that an officer may initiate a traffic stop when there is articulable and reasonable suspicion that the person stopped has committed, is committing, or is about to commit a crime. In Kansas v. Glover, the Supreme Court has an opportunity to clarify what constitutes “reasonable suspicion.” The Court will determine whether it is reasonable for an officer to seize a vehicle if the registered owner has a revoked license and there is no information to suggest that the person driving is not the owner of the car. This Commentary argues that the Court should uphold …

Brief For Child Usa Et Al. As Amici Curiae Supporting Respondents, Our Lady Of Guadalupe School V. Morrissey-Berru, Leslie C. Griffin

Court Briefs

No abstract provided.

Abolishing Racist Policing With The Thirteenth Amendment, Brandon Hasbrouck

Scholarly Articles

This Essay was also published online at 67 UCLA L. Rev. Disc. 200 (2020).

Policing in America has always been about controlling the Black body. Indeed, modern policing was birthed and nurtured by white supremacy; its roots are found in slavery. Policing today continues to protect and serve the racial hierarchy blessed by the Constitution itself. But a string of U.S. Supreme Court rulings involving the Thirteenth Amendment offers Congress a tool with which to target institutions that have preserved social, political, and official norms associated with slavery. In those cases, the Supreme Court held that Congress has broad enforcement …

Keeping Faith With Nomos, Steven L. Winter

Law Faculty Research Publications

No abstract provided.

Replacing Death With Life? The Rise Of Lwop In The Context Of Abolitionist Campaigns In The United States, Michelle Miao

Northwestern Journal of Law & Social Policy

On the basis of fifty-four elite interviews[1] with legislators, judges, attorneys, and civil society advocates as well as a state-by-state data survey, this Article examines the complex linkage between the two major penal trends in American society during the past decades: a declining use of capital punishment across the United States and a growing population of prisoners serving “life without the possibility of parole” or “LWOP” sentences. The main contribution of the research is threefold. First, the research proposes to redefine the boundary between life and death in relation to penal discourses regarding the death penalty and LWOP. LWOP …

Habeas Corpus And The Politics Of History, Isaac Cui

Pomona Senior Theses

Vijayakumar Thuraissigiam, a Tamil citizen of Sri Lanka, was apprehended after unlawfully entering the United States. Placed in expedited removal proceedings, which allows for streamlined deportation, Thuraissigiam sought asylum. However, he was found to lack the requisite credible fear of persecution based on a protected status. He petitioned for a writ of habeas corpus to review the legality of that determination. But because the expedited removal process limits federal habeas jurisdiction, his petition was dismissed. He claims that limitation violates the U.S. Constitution’s Suspension Clause, which provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless …

The Second Amendment's Safe Space, Or The Constitutionlization Of Fragility, Mary Anne Franks

Articles

No abstract provided.

Our Federalism On Drugs, Jonathan Adler

Faculty Publications

Over the past decade, voters and legislatures have moved to legalize the possession of marijuana under state law. Some have limited these reforms to the medicinal use of marijuana, while others have not. Despite these reforms marijuana remains illegal under federal law. Although the Justice Department has not sought to preempt or displace state-level reforms, the federal prohibition casts a long shadow across state-level legalization efforts. This federal-state conflict presents multiple important and challenging policy questions that often get overlooked in policy debates over whether to legalize marijuana for medical or recreational purposes. Yet in a “compound republic” like the …

The Law And Policy Of Child Maltreatment, Frank Vandervort

Book Chapters

Each year in the United States some four million children are reported to child protective services and hundreds of thousands of children are confirmed victims of maltreatment. This chapter provides a brief overview of the civil and criminal law’s response to child abuse and neglect. It summarizes the major federal statutes that provide funding to the states to support both civil and criminal law responses to maltreatment. It discusses the division of responsible for responding to child maltreatment between the federal and state governments (federalism). It also provides a summary of the constitutional framework for handling both civil and criminal …

It’S A Blowhorn, Not A Dog-Whistle: How President Trump’S Travel Ban Orders, Not His Statements, Are Enough To Establish A Violation Under The Religion Clauses, Charles Adside Iii

UC Law Constitutional Quarterly

Most bigots speak softly. They use dog-whistles, code words employed to prime bigoted sentiments within the listener. Not President Donald J. Trump; his voice on Islam is like a blow horn. His orders imposing travel bans on seven Muslimmajority countries were just as loud. Although the Trump v. Hawaii Court claimed that the executive order it reviewed was religiously neutral, adherence to precedent reveals that all three executive orders violated the Religion Clauses of the First Amendment. There is much discussion, however, regarding the President’s remarks about Islam. Many jurists conclude that they should be used for interpretative purposes in …

Selecting Scrutiny In Compelled-Speech Cases Involving Non-Commercial Expression: The Formulaic Landscape Of A Strict Scrutiny World After Becerra And Janus, And A First Amendment Interests-And-Values Alternative, Clay Calvert

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article examines how courts select the standard of scrutiny—strict, intermediate, or something akin to rational basis—in compelled-speech disputes following the United States Supreme Court’s 2018 rulings in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. The compelled-speech doctrine provides individuals and entities with a qualified First Amendment right not to be forced by the government to convey messages under certain circumstances. This principle sometimes is referred to as an unenumerated First Amendment right not to speak. The Article concentrates on compelled-speech mandates involving non-commercial expression in …

Constitutionally Unaccountable: Privatized Immigration Detention, Danielle C. Jefferis

Indiana Law Journal

For-profit, civil immigration detention is one of this nation’s fastest growing industries. About two-thirds of the more than 50,000 people in the civil custody of federal immigration authorities find themselves at one point or another in a private, corporate-run prison that contracts with the federal government. Conditions of confinement in many of these facilities are dismal. Detainees have suffered from untreated medical conditions and endured months, in some cases years, of detention in environments that are unsafe and, at times, violent. Some have died. Yet, the spaces are largely unregulated. This Article exposes and examines the absence of a constitutional …

Urge To Reform Life Without Parole So Nonviolent Addict Offenders Never Serve Lifetime Behind Bars, Johanna Poremba

Touro Law Review

No abstract provided.

In General Public Use: An Unnecessary Test In Fourth Amendment Searches Using Advanced Sensing Technology, Mike Petridis

Touro Law Review

No abstract provided.

Principles Of Home Rule For The Twenty-First Century, Richard Briffault, Nestor M. Davidson, Paul A. Diller, Sarah Fox, Laurie Reynolds, Erin A. Scharff, Richard Schragger, Rick Su

Faculty Scholarship

The National League of Cities’ “Principles of Home Rule for the Twenty-First Century” updates the American Municipal Association’s 1953 “Model Constitutional Provisions for Municipal Home Rule.” The AMA approach was widely adopted, but those provisions are now over 65 years old and intervening social, demographic, economic, and political changes necessitates a new approach to the legal structure of state-local relations. The NLC’s approach is organized around four basic principles, which are cashed-out in a model constitutional home rule provision, with commentary. The first principle states that a state’s law of home rule should provide local governments the full capacity to …

"Assault Weapon" Lethality, E. Gregory Wallace

Scholarly Works

No abstract provided.

Remorse, Not Race: Essence Of Parole Release?, Lovashni Khalikaprasad

Journal of Race, Gender, and Ethnicity

No abstract provided.

Manipulating Risk: Immigration Detention Through Automation, Kate Evans, Robert Koulish

Lewis & Clark Law Review

The U.S. Department of Homeland Security arrests as many as 500,000 migrants per year and detains more than 350,000 of them through Immigration and Customs Enforcement (ICE). Since 2012, ICE has relied on an automated Risk Classification Assessment (RCA) system to recommend whom to detain and whom to release. The authors are the first to obtain access to its algorithm and this Article is the first to make that system’s methodology public. While purportedly basing these recommendations on indicia of flight risk and risk to public safety, the RCA in fact relies on an algorithm driven by political preferences. By …

Confederate Monuments As Badges Of Slavery, Alexander Tsesis

Faculty Publications & Other Works

This Article develops a Thirteenth Amendment theory supporting the removal of Confederate symbols from government properties. It argues that such monuments to the Lost Cause are badges of slavery that should have no place in public squares.

The Article discusses how white supremacist groups, such as those who participated in the 2017 Unite the Right March in Charlottesville, effectively draw together around monuments honoring leaders and soldiers who fought for the cause of slavery. Relying on the Thirteenth Amendment's principles of freedom, States and municipalities can and should eliminate those monuments from their properties. Such policy initiatives communicate the government's …

A Constitutional Right To A Functioning United States Government? Are Governments Shutdowns Unconstitutional?, Allen E. Shoenberger

Faculty Publications & Other Works

No abstract provided.