Digital Commons Network^™

Criminalization Of Immigration Through State Enforcement: Lessons From Texas’S Latest Efforts To Criminalize Immigration Through Senate Bill 4, A. Regenold Bright

University of Arkansas at Little Rock Law Review

No abstract provided.

Ninth Amendment Neurorights, Joseph A. Tomain

Indiana Law Journal

Neurotechnology developments threaten two fundamental human rights: freedom of thought and mental privacy. For example, neuroscientists use brain scans to decode unspoken thoughts and to predict political ideology and sexual orientation. Additionally, they have successfully implanted false memories in the minds of mice. There are undoubtedly beneficial uses of this dual-use technology, such as identifying and treating a variety of medical conditions. But left unchecked, neurotechnology will be exploited by public and private actors alike. There is a growing and contested literature about how the law should respond to the increasing risks of neurotechnology. This Essay contributes to that literature …

The Unfulfilled Promise Of Confédération Des Syndicats Nationaux: A Case Study On The Reconciliation Of Equality And Freedom Of Association, Andrea Talarico

Dalhousie Law Journal

The evolution of the protection of collective bargaining rights in Canada has been marked by a tension between freedom of association (section 2(d) of the Canadian Charter of Rights and Freedoms, “the Charter”) and equality (section 15(1) of the Charter). In most cases before the Supreme Court of Canada (“the SCC”), the SCC has examined both rights separately. More recently, the SCC has treated equality as a value (rather than a right), using the value of equality to inform its interpretation of freedom of association. Both these approaches (the “Siloed Approach” and the “Charter Values” approach) fail …

The Future Is In Their Care: Justice And The Washington Constitution, Steven González

Washington Law Review

No abstract provided.

Facial Recognition Ai, Margaret Hu

Faculty Publications

The integration of algorithmic decisionmaking and artificial intelligence (“AI”) into facial recognition technology poses new, unprecedented risks to privacy and individual autonomy rights, particularly in urban settings. The murder of Brian Thompson, CEO of UnitedHealthcare, in New York City on December 4, 2024, provides a timely case study to examine the deployment of facial recognition systems by the New York Police Department and other law enforcement agencies to identify the suspect. New York City deploys some of the most sophisticated surveillance architecture in the nation, put into place following the terrorist attacks of September 11, 2001. This Article explores the …

The Equal Protection-Fourth Amendment Shell Game: An Essay On The Limited Reach Of The 2023 Affirmative Action Cases, The Fourth Amendment, And Race Beyond Skin Color, David B. Owens

Articles

In striking down race-conscious admissions at Harvard and the University of North Carolina, the Supreme Court used lofty rhetoric about the importance of ending race discrimination, even calling the command of Equal Protection “universal.” In two ways, this Essay explores the legal and practical limits of the affirmative action cases and illustrates how the Court’s claimed concern about race discrimination rings hollow. First, this Essay discusses state actors permitted to use race in their decision-making: the police. Unlike elite universities whose policies are subject to exacting scrutiny, the Supreme Court permits police to use race when deciding whom to seize …

The Equal Rights Amendment: The 28th Amendment To The U.S. Constitution, Twiss Butler, Patrick Butler

Dignity: A Journal of Analysis of Exploitation and Violence

This article reviews how Supreme Court interpretations of the 14^th Amendment have allowed laws to discriminate against women. It aims to show that the Equal Rights Amendment, ratified as the 28^th Amendment in 2020, offers a constitutional basis for eliminating all forms of legal sex discrimination against women. These forms include discrimination based on pregnancy and abortion, commodifying women’s bodies, and allowing men to intrude into women’s protected spaces. The review starts with the denial of protection for women by America’s Declaration of Independence in 1776, denounces the Supreme Court’s precedent-setting 1974 Geduldig decision, which ruled—quite illogically—that discrimination …

The Right To Exit Religion, Zalman Rothschild

Articles

This Article argues that just over fifty years ago, in Wisconsin v. Yoder, the Supreme Court recognized what might be called a right to exit religion. In this decision, the Court expressed appreciation for preserving insular religious communities, while simultaneously articulating the principle that accommodations for such communities must not unduly restrict community members’ ability to exit should they wish to do so. Yet courts and scholars have largely overlooked Yoder’s recognition of a right to exit religion. To make this “right” more concrete, the Article examines impediments to it through a case study of one large insular religious community—the …

Discussing The Unconstitutionality Of The Dual Sovereign Doctrine, Kaden Collorafi

NSU Undergraduate Law Journal

This paper critically examines the United States Supreme Court’s long-standing endorsement of the Dual Sovereignty Doctrine, which permits successive prosecutions by both state and federal governments for the same underlying conduct. Rooted in dicta from Moore v. Illinois and formally adopted in United States v. Lanza, the doctrine, in the author’s opinion, has repeatedly undermined the Double Jeopardy Clause of the Fifth Amendment. Despite the incorporation of this clause to the states through the Fourteenth Amendment in Benton v. Maryland, the Court has maintained the doctrine on grounds of judicial practicality and sovereign independence.

Through an in-depth review …

Culpable Kids, Cara H. Drinan

Texas A&M Law Review

When a child commits a crime, how do states determine if that child is culpable? There are procedural rules that determine the forum for a minor’s trial and doctrines that limit children’s exposure to the most severe sentencing. But when it comes to culpability, states employ the same substantive law whether the defendant is 50 or 15. As this Article explains, that approach is profoundly flawed. In the early 21st century, in a series of cases known as the Miller trilogy, the United States Supreme Court established that youth are fundamentally different from adults and state sentencing practices must recognize …

Nourishing The Living Tree: Vincent Macdonald And His Constitutional Thought, Preston Jordan Lim

Faculty Publications

Since the enactment of the Canadian Charter of Rights and Freedoms, Canadian judges have increasingly approached the Constitution through a living constitutionalist lens, adapting the Constitution to contemporary realities and treating the text as but one interpretive modality alongside purpose and context. The Supreme Court has rooted this living constitutionalism in the Judicial Committee of the Privy Council’s judgment, Edwards v Attorney General of Canada, wherein Lord Sankey introduced the metaphor of the “living tree.” Justice Robert Sharpe and Professor Patricia McMahon have suggested that the “living tree metaphor remained a forgotten footnote until 1982.” Indeed, more formalist approaches towards …

A Reflective Case Study Of Leadership Models In The Fight For Abortion Access, Jamie R. Abrams

ConLawNOW

This Essay presents a reflective case study on divergent leadership models in the fight for abortion access. Just as scholars study what is happening regarding abortion access, it is equally important to study how people advocate for supportive laws and policies, where they advocate, and who they center in the advocacy, so that tactics remain effective in a rapidly evolving legal, political, and social landscape. This Essay analyzes the “I Stand with Planned Parenthood” advocacy campaign of the 2000s as an example of a centralized and individual leadership model, and it identifies strategic strengths and weaknesses of that approach. This …

It's Not About Children: How Gender Resentment Shapes Public Opinion On Abortion In The United States, Nicole Kalaf-Hughes, Debra Leiter

ConLawNOW

The debate around women’s reproductive health care, and particularly restrictions on abortion, remains a hotly contested area of American politics. Increasingly, restrictions on abortion access have become politically salient and increasingly common. While traditional justification from anti-abortion forces often rests on arguments about the reverence for life, increasingly we have seen an emphasis on the argument that anti-abortion policy protect women and children. Yet if those preferences truly drive abortion attitudes, then the same attitudes that predict abortion restrictions should also predict preferences for policies that materially support women and children. However, if instead attitudes towards women’s place in society …

Chains Of Equity: How Nationwide Injunctions Are Unconstitutional, Irfan Mohamed

Themis: Research Journal of Justice Studies and Forensic Science

Since the early judicial beginnings in the English Courts of Chancery, the principles of equity have guided judicial remedies for centuries. Modern American courts inherited these principles through reception statutes passed by newly independent states, which adopted English common law, including the concept of equity as a means of providing narrowly tailored remedies to resolve specific injuries. This paper examines the historical foundations of equity and argues that nationwide injunctions, which extend beyond the immediate litigants to affect the general public, are inconsistent with these principles and, therefore, unconstitutional. A historical and doctrinal analysis of the English Court of Chancery, …

Montana Environmental Information Center V. Montana Department Of Environmental Quality, Alexis Karbowicz

Public Land & Resources Law Review

No abstract provided.

Legislative Transparency And Self-Government: Nevada And First Amendment Application, Allister Dias

Student Research

With the rise in political tension in the United States, the call for transparency from elected officials has reached an all-time high. While the role of American democracy is to promote a sense of participation from constituents, the lack of information regarding policy decisions has exempted the public from the halls of the legislature. This policy brief examines legislative transparency in Nevada through the concept of self-government theory. Despite a 1994 constitutional amendment to require publicly accessible legislative committee meetings, exemptions from Open Meeting Law and statutory exemptions continue to limit public access and further the divide between the government …

The President's Orders Targeting Law Firms As Unconstitutional Bills Of Attainder-- Damning Lessons From The Past, Gary Simson

Articles

“Sentence first, verdict afterwards,” the Queen in Alice in Wonderland insisted at the trial of the Knave of Hearts for stealing the Queen’s tarts. Such an upsidedown process obviously leaves quite a bit to be desired, but compared to the process provided by President Donald Trump’s executive orders announcing and inflicting debilitating penalties on particular law firms, it’s not all that bad. After all, the Knave of Hearts, unlike the targeted firms, at least got some sort of trial before punishment was announced.

Also, it’s one thing to be punished for stealing the Queen’s tarts—something that any law-abiding citizen of …

Personhood After Dobbs, Joshua J. Craddock

Catholic University Law Review

Following the Supreme Court’s decision to overturn Roe v. Wade in 2022, unsettled questions remain about the constitutional status of unborn children. With good reason, Dobbs v. Jackson Women’s Health Organization did not address whether unborn children are persons within the original meaning of the Due Process and Equal Protection Clauses. The historical evidence, however, is now well-established that when the Fourteenth Amendment was ratified in 1868, the word “person” had a settled public meaning that included every human being—children in the womb among them. And if unborn human beings were included within the original public meaning of “person” in …

The Human Dimension Of "Home", Robert A. Destro

Catholic University Law Review

All societies provide a legal framework that protects the pivotal functions of home and family. None provide a clear legal definition of “home”. Nor, this article argues, can they. “Home” is a concept rooted in the lived experience of human persons. In this article, the second in a series, the author employs the “human dimension” [HDIM] concept, initially developed by the U.S. military and later adopted by the Organization for Security and Cooperation in Europe, as the lens through which one can examine the “human element” of human rights. The framework for this analysis is the “four clusters of value-types” …

Too Hot, Too Cold: The Search For Just-Right Platform Liability For Recommendation Algorithms, Hannah May

University of Cincinnati Law Review

No abstract provided.

.Com Or .Gov: Should The First Amendment Care? A Proposed Alternative To Moody V. Netchoice, Llc's Editorial Discretion Rule, Jt Degrinney

University of Cincinnati Law Review

No abstract provided.

Transgender Equality: An Inflection Point For Equal Protection?, Katie Eyer

University of Cincinnati Law Review

No abstract provided.

Comparative Lessons For Enhancing Representation In The U.S. Judiciary - And Countering Democratic Decline, Shruti Rana

ConLawNOW

This Essay draws upon efforts to build more representative judiciaries in other countries and in international fora to identify promising strategies for enhancing representation in the U.S. judiciary, particularly with respect to gender and parity. It argues that efforts to enhance judicial representation and parity in the United States could benefit from incorporating and building upon international legal principles and the practices of international courts, institutions, and organizations with respect to parity and representation. Crucially, at the same time, efforts to ensure greater representation and parity in U.S. courts could further support the rule of law and counter democratic decline …

The Embodied Nature Of Representation: Reframing "Best Candidate" Narratives In Supreme Court Nominations, Susan Tanner

ConLawNOW

This Essay explores how discourse surrounding Supreme Court nominations reflects broader societal debates about merit, representation, and inclusion. Through analysis of the controversy surrounding President Biden’s commitment to nominate a Black woman to the Supreme Court, this piece examines three interconnected themes: the embodied nature of representation, the relationship between diversity and judicial legitimacy, and the problematic nature of “best candidate” narratives. It challenges traditional conceptions of merit in judicial nominations and argues for a more nuanced understanding that recognizes the value of diverse lived experiences on the bench.

An Articulation And Defense Of American Nationality, Clara E. White

Honors Theses

This thesis seeks to first provide an articulation of American nationality based on the five components outlined in David Miller’s book On Nationality. These components are Geographical Connection, Constitutive Belief, Public Culture, Active Identity, and Historical Continuity. In the case of American national identity, these components are satisfied by the founding documents meant to govern the United States as well as the sum of how citizens have interacted with these texts throughout history. Secondly, this thesis composes a defense from two widely known theories of political thought that I believe violate the articulated American nationality. These views are labeled as …

Imposing Restrictions On The First Step Act’S Retroactive Application To Vacated Sentences, Isabelle M. Carbajales, Lauren O’Neil Hamilton

University of Miami Law Review

The First Step Act has been called “the most significant criminal justice reform bill in a generation.” Until recently, the Eleventh Circuit had not weighed in on whether Section 403 of the First Step Act’s sentencing reforms applies to defendants whose initial sentences were vacated and who face resentencing after the Act’s enactment. On July 2, 2024, the Supreme Court agreed to squarely consider this issue, despite the Department of Justice siding with defendants yet calling the issue “shallow.” On July 8, 2024, the Eleventh Circuit held these defendants are not entitled to the benefits of the First Step Act …

What’S In A Name? How The Eleventh Circuit Ignored The Fourth Amendment To Hold That A Warrant For One Person Authorizes The Detention Of Others, Jared Mcclain, Dylan Moore

University of Miami Law Review

Odds are, your name isn’t all that unique. Most people share the same first and last name with hundreds, if not thousands, of other Americans. The frequency with which people share a name raises an important question of civil rights: What happens when officers arrest and detain an innocent person based on an arrest warrant that was issued for someone else with the same name?

In the Eleventh Circuit, the answer is almost always “nothing.” So long as a mistaken detention lasts three days or fewer, officers are free from accountability for apprehending the innocent—even if those officers have good …

Erie Mistakes: The Eleventh Circuit Misconstrues Already Problematic Georgia Precedent On Choice Of Law, Jeffrey A. Van Detta

University of Miami Law Review

This Article explores the Eleventh Circuit’s precedent that has struggled with an unusual Georgia choice-of-law rule. The rule in question applies when the conflicting law of a sister state is a common law rule or doctrine (such as in tort or contract law) rather than a specific statute and has been a feature of Georgia law since the 19th century. The approach has lingered in scattered Georgia and related federal cases over many decades but was not given much attention in modern times until the Georgia Supreme Court decided to reaffirm and amplify it unanimously and defiantly in Coon v. …

Differing Judicial Perspectives: A Look Into The Evolution And Constitutionality Of The United States' Administrative State, Buchanan Albert Cook

Honors Theses

Over time the United States’ administrative state has evolved into something that is quite unrecognizable from its inception in the early years of the nation. This essay will provide an account of the founding of the United States Constitution while recognizing the intent and design of the framers of the Constitution. In juxtapositioning this account with the current state of administrative agencies, questions over the constitutionality of such agencies will be posed. To answer these questions, an overview of the history of administrative agencies in the United States will be given alongside accompanying and significant Supreme Court Cases. This overview …

State Right To Appeal: Has Maine Been Too Cautious?, David J. Corson

Maine Law Review

The Legislature of the State of Maine recently passed an act relating to appeals by the State on questions of law in criminal cases. The Governor's approval of the act on January 29, 1968, was the culmination of some three years of research and debate. The purpose of this comment is to examine the form and scope of the act in light of the continuing controversy in other jurisdictions over the conflict of interests between the people and the accused in what may be characterized as a trend toward more comprehensive state appeal laws, to the end of concluding whether …