Digital Commons Network^™

The "Uncanny Valley" And The Verisimilitude Of Sexual Offenders--Part I: An "Ethorobotic" Perspective, Michael T. Flannery

Texas A&M Law Review

This Article is the first in a series of three articles in which I explain the cycle of misperception of sexual offenders that has encouraged the unconstitutional application of sexual offender laws, including civil commitment laws, in a false effort to quell public fear, protect children, and reduce sexual victimization. In this first Article of the series, I propose that this cycle of misperception and the resistance to the release of civilly committed sexual offenders may be, in part, the product of a novel phenomenon known as the “uncanny valley” effect.

Reefer Madness: The Constitutional Consequence Of The Federal Government's Inconsistent Marijuana Policy, Zachary Ford

Texas A&M Law Review

In the past twenty years, the United States has witnessed over half of its states create marijuana laws that expressly contradict the federal government’s complete ban of the drug. Nine states have completely legalized marijuana for recreational use in the past five years alone. Meanwhile, much of the country remains staunchly opposed to legalization in any form. This difference between state and federal law has the largest negative impact on noncitizens, namely lawful permanent residents whom reside in states that follow the federal government’s complete ban. Congress’s Immigration and Nationality Act broadly defines “conviction,” so even minor drug convictions under …

Law Enforcement In The American Security State, Wadie E. Said

Publications

This Article documents the evolution of the modem American police state and the symbiotic nature of the relationship between government actors across the three sectors of national security, domestic policing, and immigration enforcement. Policies from one area make their way into the other two, with the net result being that the powers of government actors are increased in all three areas. Critical to this dynamic is the construction of the target in each arena-the terrorist, the criminal, the illegal immigrant-as foreign, whether literally or figuratively. Although these targets are ostensibly limited to those deemed outside the mainstream, the result is …

Paypal Or Plastic, Don't Matter The Court Won't Have It: Why The Case For Removing "In God We Trust" From The Dollar May Still Gain Traction Under The Religious Freedom Restoration Act, Olivia Firmand

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Asylum Makeover: Chevron Deference, The Self-Referral And Review Authority, Jessica Senat

Touro Law Review

No abstract provided.

Barnette And Masterpiece Cakeshop: Some Unanswered Questions, Abner S. Greene

FIU Law Review

No abstract provided.

Revisionist History? Responding To Gun Violence Under Historical Limitations, Michael Ulrich

Faculty Scholarship

In the D.C. Circuit case Heller v. District of Columbia (Heller II), Judge Kavanaugh wrote that “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Now Justice Kavanaugh, will he find support on the highest court for what was then a dissenting view? Chief Justice Roberts, during oral arguments for Heller I, asked “Isn’t it enough to…look at the various regulations that were available at the time…and determine how these—how this restriction and the scope of this …

Accommodating Competition: Harmonizing National Economic Commitments, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

This article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

The Single-Subject Rule: A State Constitutional Dilemma, Richard Briffault

Faculty Scholarship

Critics of the proliferation of omnibus legislation in Congress have pointed to the constitutions of the American states as providing an alternative, and potentially superior, model for lawmaking. Forty-three state constitutions include some sort of “single-subject” rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the second quarter of the nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era; one recent study found the rule at stake in 102 …

The Present Crisis In American Bail, Kellen R. Funk

Faculty Scholarship

More than fifty years after a predicted coming federal courts crisis in bail, district courts have begun granting major systemic injunctions against money bail systems. This Essay surveys the constitutional theories and circuit splits that are forming through these litigations. The major point of controversy is the level of federal court scrutiny triggered by allegedly unconstitutional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (1) post-conviction fines, (2) preventive detention at the federal level, and (3) the adequacy of probable cause hearings. The Essay argues that the application of strict scrutiny makes the best sense of these …

Looking Backward And Forward At The Suspension Clause, G. Edward White

Michigan Law Review

Review of Amanda L. Tyler's Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay.

Taking Data, Michael C. Pollack

Articles

Technological development has created new forms of information, altered expectations of privacy, and given law enforcement more tools to examine that information and intrude on that privacy. One crucial facet of these changes involves internet service providers (ISPs): as people expose more of their lives to their ISPs—all the websites they visit, people they communicate with, emails they send, files they store, and more—law enforcement efforts to access that data become more and more common. But scholars and policymakers alike recognize that the existing statutory frameworks governing those efforts are based on obsolete technology and strike balances that are difficult …

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …

The Esquire Case: A Lost Free Speech Landmark, Samantha Barbas

William & Mary Bill of Rights Journal

No abstract provided.

Who’S Your Sovereign?: The Standing Doctrine Of Parens Patriae & State Lawsuits Defending Sanctuary Policies, Lexi Zerrillo

William & Mary Bill of Rights Journal

No abstract provided.

Sb 407 - Sentencing And Punishment, Abigail L. Howd, Alisa M. Radut

Georgia State University Law Review

The Act provides comprehensive reform for offenders entering, proceeding through, and leaving the criminal justice system. The Act requires all superior court clerks to provide an electronic filing option, and it requires juvenile court clerks to collect and report certain data about juvenile offenders to the Juvenile Data Exchange. In addition, the Act creates the Criminal Justice Coordinating Council and the Criminal Case Data Exchange Board. The Act also changes the grounds for granting and revoking professional licenses and drivers’ licenses to offenders and modifies the provisions relating to issuing citations and setting bail. Inmates of any public institution may …

Conspiracy: Contemporary Gang Policing And Prosecutions, Keegan Stephan

Cardozo Law Review

Part I of this Note reviews gang policing before Morales, explains the vagueness, equal protection, and policy and custom doctrines that helped shape gang policing, and details the practices of contemporary gang policing. Part II argues that contemporary gang policing violates equal protection under the innovative showing of discriminatory intent found in Floyd v. City of New York, and that contemporary gang policing violates both prongs of the vagueness doctrine when viewed in its totality-at least where it is proscribed by statute. Part III notes that the vagueness doctrine has historically been applied only to statutory law and …

Root And Branch: The Thirteenth Amendment And Environmental Justice, Mehmet K. Konar-Steenberg

Nevada Law Journal

‘[The Thirteenth Amendment] abolishes slavery . . . root and branch. It abolishes it in the general and the particular. . . . Any other interpretation belittles the great amendment and allows slavery still to linger among us in some of its insufferable pretensions.’

Tbeish V. Attorney General, Yosef Elron, David Mintz, Isaac Amit

Translated Opinions

The Petitioner claimed that he was tortured in the course of interrogation by the Israel Security Agency (ISA) (formerly the General Security Service (GSS)), and petitioned the Court to order the Attorney General to rescind his decision not to open a criminal investigation of the interrogators, and to annul the Attorney General’s guidelines entitled: “ISA Interrogations and the Necessity Defense – Framework for the Attorney General’s Discretion” (hereinafter: the AG’s Guidelines) that provide the basis for the Internal Guidelines of the ISA (hereinafter: the Guidelines). The Petitioners argued that the Guidelines unlawfully permit interrogators to consult with more senior officials …

Lincoln, Presidential Power, And The Rule Of Law, Daniel A. Farber

Northwestern University Law Review

Every era has its unique challenges, but history may still offer lessons on how law empowers and restrains presidents. This Essay examines how President Lincoln negotiated the tension between crisis authority and the rule of law. This analysis requires an appreciation of the wartime imperatives, institutions, and political forces confronting Lincoln, as well as the legal framework in which he acted. Similar issues unexpectedly arose in our times in the aftermath of the 9/11 attacks, providing a new point of comparison with Lincoln’s era. We need to better understand how political actors and institutions, the media, and public opinion can …

Executive Authority And The Take Care Clause, Colleen E. O'Connor

Notre Dame Law Review

Part I of this Note will discuss the Department of Homeland Security’s authority to regulate immigration and focuses on DACA and DAPA. Part II will address the U.S. Department of Justice’s Office of Legal Counsel Opinion on DAPA’s legality. Part III will turn to the lack of judicial constraints on or legislative responses to the executive branch’s enforcement discretion. Part IV will propose that the executive branch should take a more active role in ensuring that the President remains faithful to the Take Care Clause when exercising prosecutorial discretion. Expounding upon the Office of Legal Counsel’s multifactor framework is a …

Pennsylvania Gas: Trusts, Takings, And Judicial Temperaments, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Perhaps it is their role in our survival, or our economic growth, or the environment. Whatever the reason, energy and natural resource conflicts seems to be unique in the way they can drive significant doctrinal change even outside of energy and natural resource law. Pennsylvania has been a fountainhead of these conflicts. In 1921, Pennsylvania’s Kohler Act and lesser known Fowler Act, which sought to protect surface owners from anthracite coal mine subsidence and to increase tax revenue from anthracite mining, ignited the legal wrangling that eventually led to Pennsylvania Coal Co. v. Mahon. That U.S. Supreme Court decision transformed …

The People's Lawyer: The Role Of Attorney General In The Twenty-First Century, Mark J. Herring

University of Richmond Law Review

For the last five years, it has been my privilege to serve the people as their attorney general. The origin of the position of attorney general can be traced back centuries, but in a world that has become more interconnected, complex, and fast-paced, what does the role of a state attorney general entail in the twenty-first century and beyond? Is the proper role as a diligent but reactive defender of statutes and state agencies, or is there a deeper responsibility that calls for a more proactive and engaged use of its tools and authority? I have found that the job …

Arming Public Protests, Timothy Zick

Faculty Publications

Public protests have become armed events, with protesters and counter-protesters openly carrying firearms—generally pursuant to state law. Many view the presence of firearms at protest events as wholly incompatible with the exercise of First Amendment free speech and assembly rights. Although the Supreme Court has yet to decide whether there is a Second Amendment right to openly carry firearms in public, all but a small handful of states in the United States provide some legal protection for open carry. Taking the law as it currently stands, this Article provides a comprehensive assessment of the options available to officials who seek …

Alqasem V. Ministry Of The Interior And The Hebrew University, Neal Hendel, Anat Baron, Uzi Vogelman

Translated Opinions

Facts:

This was a request for leave to appeal the judgment of the Tel Aviv-Jaffa District Court sitting as an Administrative Affairs Court denying the Petitioner’s appeal against the judgment of the Tel Aviv Appeals Tribunal that denied the her appeal of the decision of the Minister of the Interior to cancel the her visa and prevent her entrance into Israel due to her activities in support of boycotting the State of Israel.

The Petitioner had recently completed her studies toward a B.A. at the University of Florida and was accepted into a graduate program in human rights and transitional …

Law By Non-Lawyers: The Limit To Limited License Legal Technicians Increasing Access To Justice, Rebecca M. Donaldson

Seattle University Law Review

For the first time in the American legal profession, non-lawyers can openly, independently, ethically, and legally engage in activities recognized by bar associations as the practice of law. In 2012, the Washington Supreme Court passed Admission and Practice Rule 28 (APR 28), establishing the profession’s first paraprofessional licensing scheme that allows non-lawyers to give legal advice. The process authorizes qualified non-lawyers to provide legal advice without the supervision of a lawyer. Washington’s Supreme Court intends for Limited License Legal Technicians, or “LLLTs” as they are known, to increase access to justice by responding to the unmet civil legal needs of …

Much Ado About Nothing?: Local Resistance And The Significance Of Sanctuary Laws, Alyssa Garcia

Seattle University Law Review

This Comment explores the current constitutional discourse of sanctuary laws and compares their various components. Part I provides background on the basic policy components of sanctuary laws and modern policies. Part II explores and compares the substantive legal and political value of sanctuary laws. This section will first assess the impact of sanctuary policies on existing immigration and constitutional law. In doing so, specific sanctuary jurisdictions involved in litigation, Seattle, San Francisco, and Chicago, and their likelihood of withstanding preemption under existing doctrine will be compared. The impact sanctuary laws may have on the Tenth Amendment will next be discussed. …

Automatic Authorization Of Frisks In Terry Stops For Suspicion Of Firearms Possession, Royce De R. Barondes

Faculty Publications

The recognition in Heller of an individual right to bear arms has required courts to grapple with the interaction between exercise of this right in public and Terry stops. Core questions are (i) whether reasonable suspicion a person is armed is by itself sufficient to initiate a Terry stop and (ii), if so, whether such a stop inherently authorizes an accompanying frisk. The former issue is examined in a separate forthcoming article, Royce de R. Barondes, Conditioning Exercise of Firearms Rights on Unlimited Terry Stops, 54 Idaho L. Rev. 297.

This article focuses on the second issue. Most fundamentally, insofar …

Contumacious Responses To Firearms Legislation (Leosa) Balancing Federalism Concerns, Royce De R. Barondes

Faculty Publications

The Law Enforcement Officers Safety Act (LEOSA) is one of the handful of federal statutes that preempt state firearms regulation. It allows covered individuals (certain current and retired qualified law enforcement personnel) to possess firearms notwithstanding assorted state restrictions-to protect themselves and to supplement local law enforcement efforts.

The act reflects a careful legislative balancing of federalism concerns. Although it relies on states and localities to issue the authorizing credentials, it does not mandate states create a licensing regime out of whole cloth. The act ultimately presents issues requiring a nuanced assessment of the doctrine proscribing federal commandeering of the …

Telemarketing, Technology, And The Regulation Of Private Speech: First Amendment Lessons From The Fcc’S Tcpa Rules, Justin (Gus) Hurwitz

Brooklyn Law Review

This article considers the viability of the Telephone Consumer Protection Act (TCPA) in light of recent Supreme Court First Amendment precedent and technological and regulatory developments. Robocalls—phone calls made using autodialers or prerecorded messages without the consent of the call recipient—have become one of the primary consumer protection issues facing regulators. With more than 2.4 billion of these calls placed each month, consumer concern about them dominate complaints received by both the Federal Communications Commission and Federal Trade Commission. Simultaneously, as cellphones have become a ubiquitous means by which individuals engage with one another and have become the public square, …