Digital Commons Network^™

In Search Of Evidence Against A Criminal Defendant: The Constitutionality Of Judicially Ordered Surgery, Brendan J. Hanley

The Catholic Lawyer

No abstract provided.

The “True Man” And His Gun: On The Masculine Mystique Of Second Amendment Jurisprudence, C. D. Christensen

William & Mary Journal of Race, Gender, and Social Justice

The Supreme Court’s recent Second Amendment jurisprudence raises serious normative questions for the use of self-defense with a firearm. This jurisprudence also implicates our prevailing social norms with respect to socially constructed and structurally pervasive gender roles. I argue that a peculiarly American conception of masculinity underpins the judicial construction of the Second Amendment’s core purpose as guaranteeing the right to armed defense of one’s self and one’s home. The Court’s recent Second Amendment rulings create an individual protection for gun ownership and incorporate the same against the States. But the Court’s reasoning entangles this protection with an implicit valuation …

California Propositions 62 & 66 As Misguided Models For The Capital Punishment Debate: The Argument For The Inclusion Of Catholic Social Teaching And Other Religious Denominations In The Discussion And A Proposed Solution, Cornelius V. Loughery

Journal of Legislation

No abstract provided.

Cooperative Federalism: Nevada’S Indigent Defense Crisis And The Role Of Federal Courts In Protecting The Right To Counsel In Non-Capital Cases, Randolph Fiedler, Megan Hoffman, Jonathan Kirshbaum

Nevada Law Journal Forum

In Martinez v. Ryan, the United States Supreme Court held the ineffective assistance of post-conviction counsel, or the lack of representation in a state post-conviction proceeding, provides cause to allow a federal habeas petitioner to overcome a procedural default on an ineffective assistance of trial counsel claim. This represented a radical shift in the criminal justice system. Prior to Martinez, state post-conviction proceedings—the typical mechanism for a criminal defendant to challenge the performance of his trial attorney—were not heavily scrutinized. It was understood and accepted that defendants did not have the right to counsel in these post-conviction proceedings. Whether a …

Judicial Supremacy Revisited: Independent Constitutional Authority In American Constitutional Law And Practice, Mark A. Graber

William & Mary Law Review

The Supreme Court exercises far less constitutional authority in American law and practice than one would gather from reading judicial opinions, presidential speeches, or the standard tomes for and against judicial supremacy. Lower federal court judges, state court justices, federal and state elected officials, persons charged with administering the law, and ordinary citizens often have the final say on particular constitutional controversies or exercise temporary constitutional authority in ways that have more influence on the parties to that controversy than the eventual Supreme Court decision. In many instances, Supreme Court doctrine sanctions or facilitates the exercise of independent constitutional authority …

Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas

Fordham Law Review

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel. The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the …

Keeping Gideon'S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren Sudeall Lucas

Faculty Publications By Year

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel.

The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the …

Eliminating Circuit-Split Disparities In Federal Sentencing Under The Post-Booker Guidelines, Elliot Edwards

Indiana Law Journal

This Note will explore the rarely discussed consequences that result when courts of appeals freely interpret the Sentencing Guidelines. This Note will not address appellate review of sentences in general, nor will it discuss disparities caused by trial courts. Instead, the discussion below will address a very specific situation, namely when a court of appeals vacates a sentence because, in its estimation, the trial court misapplied the Guidelines. Part I will relate the history of the recent sentencing re-form movement in America, noting particularly which bodies have the authority to decide sentencing policy. Part II will then analyze the interpretive …

I Am Not Law Enforcement! Why The Special Needs Exception To The Fourth Amendment Should Apply To Caseworkers Investigating Allegations Of Child Abuse, Lauren Kobrick

Cardozo Law Review

The note examines the application of the Fourth Amendment's special needs doctrine in child abuse investigations, advocating for the adoption of a primary purpose test to determine the doctrine's applicability. It critiques the inconsistent approaches across circuits and proposes this test to clarify when warrantless searches and seizures by caseworkers are constitutional, ensuring a balance between child protection and Fourth Amendment protections.

Handcuffing A Third Grader? Interactions Between School Resource Officers And Students With Disabilities, Elizabeth A. Shaver, Janet R. Decker

Utah Law Review

The expansion of police involvement at schools has had serious implications for students with disabilities. By enacting IDEA, Congress recognized that these students deserve special protections and entitlements. In the most recent amendments to this federal law, Congress included important guidelines regarding functional behavioral assessments (FBAs) and behavior intervention plans (BIPs) to outline how school personnel must respond to undesired behavior of students with disabilities. Recognizing the special behavioral needs of students with disabilities is one way to reduce the current reality where students with disabilities are suspended, expelled, restrained, and secluded at much higher rates than their peers.

Although …

Entrenching The Minority: The Constitutional Court In Thailand's Political Conflict, Khemthong Tonsakulrungruang

Washington International Law Journal

Since 2006, Thailand has witnessed an unprecedented surge of judicial activism from the Constitutional Court to scrutinize elected politicians in the name of the rule of law. Democracy, argued Constitutional Court judges, could only be consolidated if the rule of law was maintained. But examination of several high-profile constitutional cases suggested that the Constitutional Court was actually working on behalf of the powerful elite minority to obstruct the democratic process under the pretext of protecting the rule of law. This antagonistic position brewed resentment and violence which jeopardized the Constitutional Court’s legitimacy as a neutral political arbiter. The 2014 coup …

Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas

Fordham Law Review

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel. The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the …

After Flint: Environmental Justice As Equal Protection, David A. Dana, Deborah Tuerkheimer

Northwestern University Law Review

This Essay conceptualizes the Flint water crisis as an archetypical case of underenforcement—that is, a denial of the equal protection of laws guaranteed by the U.S. Constitution. Viewed as such, the inadequacy of environmental regulation can be understood as a failure that extends beyond the confines of Flint; a failure that demands a far more expansive duty to protect vulnerable populations.

Withholding Judgment: In Reading The Constitution, Judges Should Consider Their Own Morals,, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Peremptory Challenge - Divining Rod For A Sympathetic Jury?, Gilda Mariani

The Catholic Lawyer

No abstract provided.

Crime And The Law: Sociologico-Legal Observations, Wenceslas J. Wagner

The Catholic Lawyer

No abstract provided.

Of Spies, Saboteurs, And Enemy Accomplices: History’S Lessons For The Constitutionality Of Wartime Military Tribunals, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Congress has recently authorized military commissions to try enemies not only for violations of the international law of war, but also for domestic-law offenses, such as providing material support to terrorism and conspiring to commit law-of-war offenses. Moreover, President Trump has indicated support for further military trials, including trials against U.S. citizens. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution prescribes. The constitutionality of such an abrogation of Article III’s criminal trial guarantees has been debated during many of the nation’s wars without clear resolution, and the constitutional question is now at …

Motion For Leave To File Amicus Curiae Brief And Brief For The National Association For Public Defense And Kentucky Association Of Criminal Defense Lawyers As Amici Curiae In Support Of Petitioner, Sneed V. Burress (U.S. March 24, 2017) (No. 16-8047)., Janet Moore

Faculty Articles and Other Publications

No abstract provided.

A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany

International Law Studies

This article discusses one principal challenge to detention without trial of suspected international terrorists—the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One of this article describes the “hardline” position on security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the United Kingdom and the State of Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the …

Civil Liberty Or National Security: The Battle Over Iphone Encryption, Karen Lowell

Georgia State University Law Review

On June 5, 2013, Edward Snowden released what would be the first of many documents exposing the vast breadth of electronic surveillance the Federal Bureau of Investigation (FBI) and the National Security Agency (NSA) had been conducting on millions of United States citizens. Although the federal agencies had legal authority under the Foreign Intelligence Surveillance Act (FISA) to collect metadata from companies such as Verizon, many Americans considered this data collection to be a massive invasion of privacy.

Equipped with the knowledge of sweeping domestic surveillance programs, citizens and technology firms fighting for strong privacy and security protection, have started …

Random If Not "Rare"? The Eighth Amendment Weaknesses Of Post-Miller Legislation, Kimberly Thomas

Articles

First, this Article surveys the U.S. Supreme Court's decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes. Second, this Article examines the state legislative response to Miller, and scrutinizes it with the Court's Eighth Amendment death penalty law-and the states' responses to this case law-in mind. This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of …

Pricing The Fourth Amendment, Miriam H. Baer

William & Mary Law Review

Critics have long decried the Fourth Amendment’s lack of an adequate remedy to secure its compliance. Neither the exclusionary rule nor the threat of civil liability deters police misconduct, leaving scholars to cast about for alternative measures. The emphasis on penalties, however, overlooks a different problem: detection. Because of policing’s fast-paced nature, even so-called “flagrant” Fourth Amendment violations trigger insufficient liability due to low probabilities of detection.

This Article addresses this problem by drawing on the Pigouvian tax literature. The Pigouvian tax—sometimes referred to as a “corrective tax”—is a pricing instrument imposed by regulators in an amount equal to the …

My Life In Crime: An Intellectual History Of The Juvenile Court, Barry C. Feld

Nevada Law Journal

No abstract provided.

Championing Children's Rights In Nevada, 2000-2015: The Thomas & Mack Juvenile Justice Clinic As Change Agent, Mary C. Berkheiser

Nevada Law Journal

No abstract provided.

Pursuing Gault, David S. Tanenhaus, Eric C. Nystrom

Nevada Law Journal

No abstract provided.

Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon

Nevada Law Journal

Well over 90 percent of all criminal cases in the United States are resolved by plea bargaining and not by trial. This means that how plea bargaining works impacts nearly every criminal defendant. However, there are few restrictions to protect defendants in the negotiating process. One serious problem is that prosecutors regularly use hard bargaining tactics such as exploding offers, threats to add enhancements, take-it-or-leave-it offers, and threats to seek the death penalty. These hard bargaining tactics contribute to the often highly coercive atmosphere of plea bargaining that can lead innocent defendants to plead guilty. Pressure to plead guilty can …

The Cost Of Ab 193: Constitutional Guarantees Sacrificed For Ineffective Means, Paul George

Nevada Law Journal

No abstract provided.

Unprecedented Infringement: Debunking The Constitutionality Of Dna Collection From Mere Arrestees In Light Of Maryland V. King, Christen Giannaros

Journal of Civil Rights and Economic Development

No abstract provided.

State V. Lovejoy: Should Pre-Arrest, Pre-Miranda Silence Be Admissible During The State's Case-In-Chief As Substantive Evidence Of Guilt?, Mark A. Rucci

Maine Law Review

Article 1, section 6 of Maine Constitution reads in part that “[t]he accused shall not be compelled to give evidence against himself or herself, nor be deprived of life, liberty, property, or privileges . . . .” Further, the Law Court has held that “the State constitutional protection against self-incrimination is the equivalent of the Fifth Amendment." However, as with most provisions of the Constitution, the protection against self-incrimination is open to interpretation. While the Supreme Court has answered some questions surrounding the Fifth Amendment’s protections, it has left many decisions regarding its scope largely within the purview of the …

Personal Enough For Protection: The Fifth Amendment And Single-Member Llcs, Lila L. Inman

William & Mary Law Review

No abstract provided.