Digital Commons Network^™

What Is Deeply Rooted In The Constitution?, Thomas P. Crocker

BYU Law Review

In a series of cases stretching over a century, the Court made a right’s roots a constitutive feature of its identity. Highlighting the analytic centrality of deep roots to the recognition of rights, Dobbs v. Jackson Women’s Health withdrew prior judicial recognition of a woman’s right to reproductive choice, arguing that such a right was not properly rooted in the American legal tradition. But what does it mean for a right to have deep roots? A surprising feature of American constitutionalism is that there is no single answer to the basic analytic question of what it means for a right …

Exit Through The White House: Congressional Constraints On Unilateral Presidential Withdrawal From Treaties, Taylor R. Dalton

Texas A&M Law Review

When does the U.S. President have the constitutional authority to withdraw from a treaty unilaterally? Where the U.S. Constitution details the making but not the exiting of treaties, the U.S. Supreme Court has largely left the issue open for the political branches to resolve. Many scholars argue that modern practice supports a conclusion that the President has the practical—if not legal—power to withdraw unilaterally from an Article II treaty or congressional-executive agreement without the consent of Congress. This argument is largely premised on the claim that Congress has acquiesced to executive practice, providing a gloss on expansive executive power to …

We The People, But Not You: The Eighth Circuit Says Undocumented Immigrants Are Not Part Of “The People” Who May Bear Arms, Caleb Kearney

Villanova Law Review (1956 - )

No abstract provided.

Yellowstone National Park's Record Of Decision On Bison Management, Lila Bennett

Public Land & Resources Law Review

Bison herds once roamed the American Plains by the millions and were a staple in the lives of Native Americans. By the late 1800’s, bison were nearly extinct due to the westward expansion of European settlers and over hunting. Now, there is a population of merely 30,000 wild bison in North America. Although bison no longer face threats of immediate extinction, wild herds face stark realities of disease, habitat loss, and genetic degradation.

Schutter V. State Board Of Land Commissioners, Gillian P. Ellison

Public Land & Resources Law Review

In Schutter v. State Board of Land Commissioners, the Montana Supreme Court addressed the State’s fiduciary obligation in the context of water rights appurtenant to school trust lands. Central to the Court’s holding was the State’s fiduciary duty in managing lands held in trust for the benefit of the State. By upholding the State’s claim to partial ownership of a water right originating on private land, the Schutter Court underscored the tension between private property rights and the State's trust fiduciary duties.

Flathead-Lolo-Bitterroot Citizen Task Force V. Montana, Sarah J. Leopard

Public Land & Resources Law Review

Flathead-Lolo-Bitterroot Citizen Task Force v. Montana evaluates the efficacy of the proposed 2024 gray wolf floating season in preventing harm to grizzly bears, a protected species in Montana. The Court of Appeals for the Ninth Circuit affirmed the implementation of a “serious questions” test for preliminary injunctions that is specific to Endangered Species Act cases. The Court agreed with the district court’s grant of a preliminary injunction that limited the 2024 floating season temporally, but modified the injunction in two respects, thereby narrowing its application. The Court’s holding signifies the continuation of a preliminary injunction standard that values protections for …

Religion In Public Schools: Constitutional Revolution In Action, Noah R. Feldman

University of Cincinnati Law Review

No abstract provided.

A Conversation With Justice Brett Kavanaugh, Brett M. Kavanaugh, J. Joel Alicea

Catholic University Law Review

On Thursday, September 26th, 2024, the Center for the Constitution and the Catholic Intellectual Tradition at The Catholic University of America hosted a conversation between Justice Brett M. Kavanaugh and Professor J. Joel Alicea. This was the inaugural event of the new Center. The conversation covered topics such as constitutional interpretation, the separation of powers, religious liberty, and the Catholic intellectual tradition. This is a transcript of the conversation, and the text appears substantially as it was delivered. The video of the event may be found at this link: https://www.youtube.com/watch?v=2sKvSwzkmqo.

Colliding Doctrines: How Sffa V. Harvard Impacts Public University Officials' Legal Protections, Christo Fosse

University of Cincinnati Law Review

No abstract provided.

The Search For Unenumerated Fundamental Rights, Alina Sluzhyvenkova

Student Theses and Dissertations

There are certain rights that are explicitly enumerated in the Constitution, e.g., right to bear arms, right to free speech, right to a speedy and public trial. There are also rights that aren’t specifically written out but are nevertheless enjoyed by people nationwide. Rights that aren’t explicitly mentioned in the Constitution, but which are fundamental to are called the unenumerated rights. Unenumerated rights are just as important and can be derived from natural law, enumerated rights, the Ninth Amendment, precedents, judicial opinions, and substantive due process.

Substantive due process is a principle guaranteed by the Fifth and Fourteenth Amendments, which …

State V. Sweatt: An Examination Of The Current Confusion In Fourth Amendment Standing, John Archer Hobson

Maine Law Review

In State v. Sweatt the Maine Law Court held that an owner of gems being sold on consignment in a third party's store has standing under the fourth amendment to contest the seizure of the gems. The movants in Sweatt were the targets of several police searches during October and November of 1980. During these searches the police seized tourmaline gemstones which were alleged to have been stolen from Dale Sweatt's former business partner, and miscellaneous personal items belonging to the Sweatts. Subsequently, the Sweatts moved for suppression and return of all these articles. The superior court granted the movants' …

Deinstitutionalizing The Mentally Retarded In Maine: The Inevitable Face-Off With Zoning, Pamela D. Albee

Maine Law Review

In July 1978, agencies and officials of the State of Maine entered into a federal consent judgment which terminated a class action lawsuit that had dragged on for three years. The consent judgment in Wuori v. Zitnay detailed a comprehensive plan designed to bring about speedy and meaningful relief to the plaintiff class: mentally retarded citizens of Maine involuntarily confined to Pineland Center, Maine's principal institution for the mentally retarded, and certain others who were conditionally released from Pineland and in community placements. The relief granted was a right to be provided the least restrictive and most normal living conditions …

Stewart V. Inhabitants Of Durham: An Exclusionary Purpose Ignored, Peter Alexander Meyer

Maine Law Review

Exclusionary zoning of mobile homes has become an increasingly important issue in Maine because of escalating costs of conventional housing and rising unmet housing needs. Although towns may regulate mobile home or any other housing use in order to foster public health, safety, morals, or general welfare, they may not enact a zoning ordinance to exclude people of lower income in an attempt to avoid the "increased governmental costs and the stresses upon public services which generally accompany such an incursion." In Stewart v. Inhabitants of Durham, the Maine Supreme Judicial Court was confronted with an exclusionary purpose in a …

Constitutional Issues Raised By The Civil-Criminal Dichotomy Of The Maine Oui Law, Bruce W. Smith

Maine Law Review

Moving to the forefront of a national trend, the Maine Legislature undertook a thorough reform of its operating under the influence (OUI) law in 1981. The new statute was billed "the toughest in the nation," largely because of a provision for mandatory prison sentences. The statute's most radical provision is not the mandatory prison term, however, but a section which gives prosecutors the option to treat less egregious first offenses as civil infractions rather than crimes. The section generates the broad issue addressed by this Comment: may trial by jury and other constitutional protections formerly afforded OUI defendants be denied …

Posteriores Priores: An Unconstitutional Congressional Role In Treaty Termination, Donna D. Mckeage

Maine Law Review

The Supreme Court recently decided a case involving an apparent conflict between a treaty provision and a subsequent act of Congress. A Japanese subsidiary corporation, Sumitomo Shoji America, Inc., claimed a provision of the Treaty of Friendship, Commerce, and Navigation of 1953 between the United States and Japan exempted it from the prohibition against discrimination embodied in title VII of the Civil Rights Act of 1964. The Court did not reach this issue because it found Sumitomo Shoji America, Inc. to be a United States corporation and unable, therefore, to invoke the provisions of the treaty. The issue raised in …

The Biopiracy Of Traditional Knowledge In United States Patent Law, Hannah Green

Public Land & Resources Law Review

The United States intellectual property (“IP”) system is deeply intertwined with our country’s history and constitution. t is foundational in favoring young American inventors. George Washington signed the first patent act in 1790 in hopes of promoting the innovation and progress of science and useful arts. Yet, our patent system was also built around the Western tradition of individualism and competition, which failed to recognize the communal nature and traditional knowledge of tribal communities. This disparity allows the biopiracy of traditional knowledge to be lawful. This comment will explore the harmful toll that United States patent law has taken on …

Stitch Incoming: Lindke V. Freed’S Impact On Social-Media-Blocking Litigation, Clare R. Norins, Mark L. Bailey

Washington and Lee Law Review Online

Since at least 2016, social-media-blocking litigation against government officials who censor their online critics has been an evolving battleground for First Amendment rights of free speech and petition. In 2024, the United States Supreme Court issued its first substantive opinion on social media blocking, holding that government officials’ social media activity, even on a personal account, constitutes state action triggering constitutional scrutiny if (1) the official possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when she spoke on social media.

In this Article, we explain the Court’s novel two-part test for determining …

Corpus Linguistics And The Original Meaning Of The Sixth Amendment, Wesley White

BYU Law Review

The Sixth Amendment guarantees the right of an accused to have the assistance of counsel in a criminal prosecution. Put simply, under the U.S. Supreme Court’s current framework, an accused does not enjoy this right until the government has brought a formal charge. Thus, an accused who engages in plea bargaining before being formally charged is not guaranteed the Sixth Amendment right to counsel. Many critics of this framework focus on the purpose of the Sixth Amendment to argue that the right to counsel should be guaranteed in pre-charge plea bargaining. Others point to policy concerns.

This Note is among …

Hanover Insurance Co. V. Hayward: Imposition Of Punitive Damages In Addition To Criminal Sanctions, David P. Silk

Maine Law Review

In Hanover Insurance Co. v. Hayward, the Maine Supreme Judicial Court, sitting as the Law Court, addressed the issue whether punitive damages may be awarded against a defendant who has been criminally convicted for the conduct giving rise to the punitive damages claim. Although it affirmed the superior court's decision not to allow the award of punitive damages, the Law Court concluded that the imposition of criminal sanctions did not by itself bar punitive damages. Instead, the court indicated that criminal punishment is merely one factor to consider in determining whether an award of punitive damages would serve a meaningful …

The Status Of Jury Trial Waivers In Maine's District Court, Robert M. Knight

Maine Law Review

The power of a defendant to waive jury trial in state and federal criminal prosecutions has long been recognized. At the same time, when the offense charged is serious, i.e., one which invokes a federal constitutional right to jury trial, the United States Supreme Court has required a careful examination of the validity of such a waiver. The waiver rule applicable in Maine's superior court fully appreciates this strict waiver standard. Exercising its rulemaking authority, however, Maine's Supreme Judicial Court adopted a rule (effective in 1982) for waiver of jury trial in the state's district court which seemingly obscured the …

The Constitution At Sea, Louis Henkin

Maine Law Review

Time was when it was assumed that the United States Constitution, like a deity of old, ruled only in its territory and did not apply outside the United States. Since 1957 we know that the Constitution applies wherever the United States exercises authority. If, as the Supreme Court then held, the Constitution governs the acts of the United States in the territory of a foreign state, where the Constitution might be deemed a foreign "intruder" on local sovereignty, it would seem to apply also — indeed a fortiori — to acts of the United States on the high seas, where …

Restraining The Prosecutor: Restrictions On Threatening Prosecution For Civil Ends, James A. Trowbridge

Maine Law Review

Prosecutors in some cases agree to dismiss criminal charges, admit a defendant to a diversion program, or enter a nolle prosequi in exchange for the defendant signing a waiver of any civil claims against law enforcement agents, governments, or private persons. The practice of a prosecutor bargaining for the release of law enforcement personnel or others from civil liability raises serious questions concerning the independence of the prosecutorial function, the relationship of prosecutors to other legal institutions, and the application of rules of professional responsibility. Generally, courts have been critical of these arrangements. The Model Code of Professional Responsibility (Code) …

In Re Daniel C.: Reunification Efforts And The Termination Of Parental Rights, James W. Claus

Maine Law Review

In In re Daniel C., the Maine Supreme Judicial Court, sitting as the Law Court, affirmed an order terminating a father's parental rights pursuant to title 22, section 4055 of the Maine Revised Statutes. The issue on appeal concerned the effect of a failure by the Department of Human Services (DHS) to make efforts toward family reunification. The appellant, Daniel C.'s father, Everett Co., argued that the DHS failed to make adequate reunification efforts as required by title 22, section 4041 of the Maine Revised Statutes and that this failure precluded the termination of his parental rights. The Law Court …

In Re Caulk: A Prisoner's Right To Die—The Factor Of Intent, Laurence H. Leavitt

Maine Law Review

In prisons throughout the United States, prisoners commonly use hunger strikes as an avenue of protest to make personal demands, to call attention to poor prison conditions, or to make various political statements. Prisoners typically choose this route because they view their own bodies as one of the few things over which they actually have control and because the extreme slowness of a hunger strike gives others the chance to meet their political or personal demands. When confronted with such attempts at starvation, prison officials almost invariably have resorted to force-feeding the hunger strikers, although in recent years some prison …

State V. Durepo: Toward A Principled Maine Version Of The Impeachment Exception To The Exclusionary Rule, Andre D. Bouffard

Maine Law Review

As one might have anticipated, the broad substantive mandates of the major Warren Court exclusionary rule decisions have not been left completely intact by later Supreme Court decisions. Instead, the scope of the evidentiary exclusionary doctrine established by the Warren Court has been significantly narrowed by later Supreme Court decisions that have created numerous exceptions to the general command of the exclusionary rule that evidence obtained through unconstitutional means is inadmissible in a criminal trial. Although some members of the present Court argue that the exceptions to the exclusionary rule are consistent with the purposes of the rule, and therefore …

State V. Farnham: The Defendant's Exercise Of The Right To Stand Trial As Negative Character Evidence, Richard F. Buckley

Maine Law Review

A defendant in a criminal case may not receive a more severe sentence because he exercised his sixth amendment right to stand trial. However, determining when a court has more severely sentenced a defendant for exercising his constitutional right to a jury trial is a difficult task. Some argue that a defendant's choice to stand trial is relevant to the sentencing process as character evidence. The decision to stand trial, the argument goes, indicates a defendant's lack of remorse and an unwillingness to take the first step toward redemption by admitting his guilt. Others take the position that consideration in …

Public School Integration Of Children With Handicaps After Smith V. Robinson: "Separate But Equal" Revisited?, Robert J. Goodwin

Maine Law Review

Under the direction of Chief Justice Burger the United States Supreme Court has issued several opinions limiting the availability of federal causes of action. While one benefit of this trend may be a reduction in the volume of federal litigation, the costs may include the limitation of substantive federal rights. The recent Supreme Court decision in Smith v. Robinson narrowly construed the availability of certain federal causes of action, and it illustrates how such a ruling, although procedural on its surface, in reality can operate to erode substantive rights. In Smith the Court concluded that a handicapped child could not …

State V. Boilard: Are Jury Instructions On Statutory Defenses Essential To A Fair Trial?, Kristin A. Gustafson

Maine Law Review

In State v. Boilard, the Maine Supreme Judicial Court, sitting as the Law Court, recently addressed the question of when the failure to instruct the jury regarding a defense available under the Maine Criminal Code constitutes error. The court held that the trial court's failure to give an instruction on the defense of justification did not rise to the level of obvious error. The court reasoned that because the instruction conflicted with the defendant's theory of defense, and because counsel for the defendant did not claim error at trial or on appeal, any argument that the defendant had been prejudiced …

The Primacy Method Of State Constitutional Decisionmaking: Interpreting The Maine Constitution, Glen S. Goodnough

Maine Law Review

The past fifteen years have witnessed the steady growth of both the theory and practice of state constitutional law. Initial inquiry focused on whether state supreme courts should provide their residents more expansive substantive and procedural rights under their state constitutions than required by United States Supreme Court interpretations of the federal Constitution. Given the plethora of state constitutional decisions expanding rights beyond the federally required minimum, or "floor," it is apparent that a large number of state supreme courts have settled the question of whether they will in fact interpret their state constitutions in such a manner. Nevertheless, lingering …

Federal Agency Nonacquiescence: Defining And Enforcing Constitutional Limitations On Bad Faith Agency Adjudication, Christopher C. Taintor

Maine Law Review

A leading authority in the field of administrative law has posited that "[t]he availability of judicial review is the necessary condition, psychologically if not logically, of a system of administrative power which purports to be legitimate, or legally valid." There is no question that judicial review is an imperfect check on agency action: it is susceptible to criticism for, on the one hand, the excessive limitations on its exercise, and on the other for the arguably inferior level of understanding from which courts must approach matters uniquely within the competence of particular administrators. Nonetheless, the courts remain "the acknowledged architects …