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Preventing Parkland: A Workable Fourth Amendment Standard For Searching Juveniles' Smartphones Amid School Threats In A Post-Parkland World, Andrew Mueller

William & Mary Bill of Rights Journal

On February 14, 2018, Nikolas Cruz, age nineteen, went to the Marjory Stoneman Douglas High School campus in Parkland, Florida, armed with an AR-15 rifle. He opened fire, killing seventeen students. His unspeakable actions culminated in an attack, which eclipsed the 1999 Columbine High School Massacre to become the deadliest school shooting at a high school in American history. In the immediate months following this still-recent tragedy, schools across the United States were flooded with “copycat” threats of violence. Terroristic threat charges levied against juveniles have likewise skyrocketed.

These recent events have resulted in new and burdensome pressures for schools …

Tasing The Constitution: Conducted Electrical Weapons, Other Forceful Arrest Means, And The Validity Of Subsequent Constitutional Rights Waivers, Andreas Kuersten

William & Mary Bill of Rights Journal

Conducted electrical weapons (CEWs)—the most famous and widely used of which are offered under the TASER brand—are ubiquitous tools of law enforcement, carried by the vast majority of law enforcement officers and routinely deployed. These devices subdue targets by coursing electric current through their bodies, thereby causing individuals to collapse as their muscles involuntarily contract. Yet this method of operation has raised concerns—voiced by researchers, advocates, and criminal defendants alike—that CEWs influence cognitive capacity in addition to muscle function as electric current potentially transits through the brain via the central nervous system. In the context of an arrest, this implicates …

Section 1983 & Qualified Immunity: Qualifying The Death Of Due Process And America's Most Vulnerable Classes Since 1871. Can It Be Fixed?, Gabrielle Pelura

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

No abstract provided.

Reconciling Risk And Equality, Christopher Slobogin

Vanderbilt Law School Faculty Publications

States have increasingly resorted to statistically-derived risk algorithms to determine when diversion from prison should occur, whether sentences should be enhanced, and the level of security and treatment a prisoner requires. The federal government has jumped on the bandwagon in a big way with the First Step Act, which mandated that a risk assessment instrument be developed to determine which prisoners can be released early on parole. Policymakers are turning to these algorithms because they are thought to be more accurate and less biased than judges and correctional officials, making them useful tools for reducing prison populations through identification of …

The Failure To Grapple With Racial Capitalism In European Constitutionalism, Fernanda Giorgia Nicola Dr.

Working Papers

Since the 1980s prominent scholars of European legal integration have used the example of U.S. constitutionalism to promote a federal vision for the European Community. These scholars, drawing lessons from developments across the Atlantic, concluded that the U.S. Supreme Court had played a key role in fostering national integration and market liberalization. They foresaw the possibility for the European Court of Justice (ECJ) to be a catalyst for a similar federal and constitutional outcome in Europe. The present contribution argues that the scholars who constructed today’s dominant European constitutional paradigm underemphasized key aspects of the U.S. constitutional experience, including judgments …

Worse Than Punishment: How The Involuntary Commitment Of Persons With Mental Illness Violates The United States Constitution, Samantha M. Caspar, Artem M. Joukov

UC Law Constitutional Quarterly

This Article highlights that individuals who suffer from mental health problems can be particularly defenseless against an attack on their liberty through criminal and civil law. Specifically, it delineates how the current laws allow for a potential indefinite commitment of a person who may not have even committed a single crime. The Article explains that constitutionally mandated standards should be required to protect individuals who face losing their liberty due to the perceived threat of future harm. The authors posit that, while preventing individuals from harming themselves or others is an honorable goal, the state should only be able to …

Comparative Cruelty: A Comparative Analysis Of The Eighth Amendment To The United States Constitution And Section Nine Of The New Zealand Bill Of Rights Act, Carrie Leonetti

UC Law Constitutional Quarterly

Given that the United States Constitution and the New Zealand Bill of Rights Act both contain prohibitions against governmental acts of cruelty and torture, this Article offers a comparative analysis of the judicial interpretations of the meaning of “cruel” in the prohibition against cruel and unusual punishment in the two country’s founding documents. The Article beings by considering the shared historical underpinnings of the prohibitions, which require a proportionality analysis when assessing whether a punishment is excessive. Next, it examines the meaning of “cruelty” and the scope of the prohibitions in New Zealand and the United States. The Article documents …

Neurodiversity In Public Schools: A Critique Of Special Education In America, Pallavi M. Vishwanath

UC Law Constitutional Quarterly

This Note provides a comparative critique to the special education practices in the U.S. and Canada. The Note reasons that a country or democracy is most benefitted when there is a recognized governmental duty to maximize the potential of every student via public education. The Note further exposes how a difference in governmental duty to provide equal education drastically affects students’ dignity and potential. This Note describes the history of the American public education system; explains the development of special education in the United States and the ambiguous governmental duty to educate American students; and discusses Canadian case law regarding …

From The Legal Literature: Highlighting The Failure Of Criminal Courts To Adequately Test Machine Evidence, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

No abstract provided.

The Difference Of One Vote Or One Day: Reviewing The Demographics Of Florida’S Death Row After Hurst V. Florida, Melanie Kalmanson

University of Miami Law Review

As the federal appeals court with jurisdiction over Florida and Alabama—two leaders in capital punishment in the United States—the Eleventh Circuit reviews several claims each year related to capital punishment. Florida is home to one of the largest death row populations in the country. Thus, understanding Florida’s capital sentencing scheme is important for understanding capital punishment nationwide.

This Article analyzes the empirical demographics of Florida’s death row population and reviews how defendants are sentenced to death and ultimately executed in Florida. The analysis reveals that although age is not a factor upon which murder/manslaughter defendants are discriminated against in the …

Recidivist Sentencing And The Sixth Amendment, Benjamin E. Adams

Indiana Journal of Law and Social Equality

No abstract provided.

Failing To Keep The Cat In The Bag: A Decennial Assessment Of Federal Rule Of Evidence 502'S Impact On Forfeiture Of Legal Privilege Under Customary Waiver Doctrine, Jared S. Sunshine

Cleveland State Law Review

Federal Rule of Evidence 502—providing certain exemptions from the surrender of attorney-client and work product privilege because a confidential item was disclosed—had great expectations to live up to after its enactment in 2008, as Congress and others heralded it as a panacea to litigation’s woes in the face of bourgeoning discovery. The enacted rule was the subject of much skepticism by the academic punditocracy, however. Ten years later, this Article surveys the actual results and finds that, regrettably, pessimism has proven the better prediction. Percolation of debate over the rule’s many ambiguities and courts’ disparate approaches have not resolved initial …

Disaggregating Ineffective Assistance Of Counsel Doctrine: Four Forms Of Constitutional Ineffectiveness, Eve Brensike Primus

Articles

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives the decision too much prominence because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two pronged test applies to only one of the four. If litigants and courts would notice this complexity and relegate Strickland to its proper place, it would …

Examining Death Penalty Ballot Measures: A Review Of Austin Sarat’S The Death Penalty On The Ballot, Michael Conklin

Seattle Journal for Social Justice

No abstract provided.

The Thirteenth Amendment And Human Trafficking: Lessons & Limitations, Kathleen Kim

Georgia State University Law Review

Part I of this Article contextualizes human trafficking within the doctrinal development of the Thirteenth Amendment and Section Two legislation enacted to address subsequent forms of unfree labor. This part describes the origins of a race-conscious Thirteenth Amendment framework and explains its relevance in guiding antitrafficking policy. The overwhelming focus of antitrafficking efforts on sexual exploitation strains the normative foundation of the Thirteenth Amendment. Part II examines the TVPA and the California Trafficking Victims Protection Act and identifies their most significant contributions to Thirteenth Amendment doctrine. Yet, this part finds that the absence of a Thirteenth Amendment framework to guide …

Ascriptive Nationalism, Demagoguery, And The Modern Presidency: A Case Study In Constitutional Decay, Christopher J. Putney

Dissertations, Theses, and Capstone Projects

This study is an account of the modern presidency as a source––and under Donald Trump, an accelerant––of systemic problems in American politics. Against the prevailing scholarly view of the Trump presidency as an unqualified aberration, I argue that the signal features of his efforts at governance are actually the product of converging patterns of political and institutional order. Building on seminal (but previously disjointed) work on ascriptive Americanism and the rhetorical presidency, I show that Trump represents the political synthesis of America’s ascriptive tradition and a form of presidential leadership inaugurated more than a century ago by Woodrow Wilson. Moreover, …

Beat The Heat: Texas’S Need To Reduce Summer Temperatures In Offender Housing, Mary E. Adair

St. Mary's Law Journal

The Texas Department of Criminal Justice’s lack of air conditioning in offender housing areas is a violation of the Eighth Amendment and deprives offenders of humane living conditions. Unlike most Texans, offenders housed in the TDCJ are unable to adequately protect themselves from the higher, prolonged summer temperatures. Most Texas prisons do not provide air conditioning or other types of cooling systems in offender housing areas, so offenders are at the mercy of the elements with little protection against heat-related illnesses. Several jurisdictions, other than Texas, have recognized extreme temperatures in housing areas can lead to constitutional violations because the …

State V. Bassett: Washington Courts Can No Longer Sentence Juveniles To Die In Prison, Carolyn Mount

Seattle Journal for Social Justice

No abstract provided.

Youth Suffrage: In Support Of The Second Wave, Mae C. Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens

Akron Law Review

The 19th Amendment is talked about as central to our nation’s suffrage story, with many situating women's suffrage work within feminist theory "wave" discourse. However, with this telling, scholars and others too frequently overlook young voters and efforts relating to their election law rights. This article seeks to remedy this oversight and complicate the voting rights canon, in addition to supporting efforts of today’s youth voting rights advocates. It does so by turning our attention to youth suffrage movements, which we argue also can be examined by way of a framework of "waves." The first to offer such an historical …

Felony Disenfranchisement And The Nineteenth Amendment, Michael Gentithes

Akron Law Review

The Nineteenth Amendment and the history of the women’s suffrage movement can offer a compelling argument against felony disenfranchisement laws. These laws leave approximately six million citizens unable to vote, often for crimes wholly unrelated to the political process. They also increasingly threaten gains in female enfranchisement.

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier. Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails, and that their votes are somehow less worthy than others. …

Suffragist Prisoners And The Importance Of Protecting Prisoner Protests, Nicole B. Godfrey

Akron Law Review

This paper examines the role that public exposure to the conditions experienced by suffragist prisoners played in the passage of the Nineteenth Amendment. Using the experience of the suffragists as an example of how prisoner protest impacted democratic debate, the paper argues that robust protection of prisoners’ First Amendment rights is fundamental to the nation’s democratic values and political discourse and debate.

The paper begins with an historical overview of the arrests, convictions, and incarceration of the Silent Sentinels, women who began picketing outside the White House in 1917. Over the course of several months, local officials in the District …

Re-Charting The Remedial Course For Section 11(B) Violations Post-Jordan, Andrew Pilla, Levi Vandersteen

Osgoode Hall Law Journal

In R v Jordan, the Supreme Court of Canada adopted a new framework for establishing violations of the right to be tried within a reasonable time under section 11(b) of the Charter. It did not, however, adopt a new approach to the remedy applicable thereafter. Since the 1987 decision R v Rahey, the only remedy for unreasonable delay has been a stay of proceedings. This article contends that this “automatic stay rule” must be revisited post-Jordan. It does so by conceptualizing Jordan as a shift from an “interest balancing” framework—where individual and societal interests are …

Symposium: Pandemics And The Constitution: Tiered Scrutiny In A Pandemic, Jeffrey D. Jackson

ConLawNOW

During this spring of COVID-19, Americans are facing numerous state and local government-imposed restrictions that would have seemed implausible a few short months ago. While many of these restrictions seem to be unquestionably warranted, there have been others that have the potential to negatively impact fundamental rights. From abortion restrictions to gun control, these actions threaten liberty in the name of police powers. During this time of crisis, there is a need for courts to be especially vigilant. Throughout the nation’s history, the concept of emergency power has been used to justify restrictions on the rights of Americans, with tragic …

Justice Diseased Is Justice Denied: Coronavirus, Court Closures, And Criminal Trials, Ryan Shymansky

West Virginia Law Review Online

This Article aims to consider the immediate impacts of the novel coronavirus on criminal defendants’ access to speedy trials by jury. In particular, it aims to examine whether court closures and delays could affect the substantive rights of criminal defendants—and particularly pretrial detainees—to a speedy and public trial by jury. To date, very little scholarship has considered this question. Yet the ideal of a speedy trial by jury is deeply embedded in our Constitution and our judicial system, and the potential for a pandemic to limit or negate that right should ring scholastic and judicial alarm bells.

This analysis proceeds …

“We Can’T Just Throw Our Children Away”: A Discussion Of The Term-Of-Years Sentencing Of Juveniles And What Can Be Done In Texas, Anjelica Harris

Texas A&M Law Review

In the words of Supreme Court Justice Elena Kagan, children are different. The issue of how to sentence juvenile offenders has long been controversial. Although psychology acknowledges the connection between incomplete juvenile brain development and increased criminality, the justice system lags behind in how it handles juvenile offenders. A prime example is the case of Bobby Bostic, who at the age of sixteen was charged with eighteen offenses and sentenced to 241 years in prison. This sentence, known as a term-of-years or virtual life sentence, essentially guarantees that no matter what Bobby does or who he proves himself to be …

Symposium: Pandemics And The Constitution: Why The Special Needs Doctrine Is The Most Appropriate Fourth Amendment Theory For Justifying Police Stops To Enforce Covid-19 Stay-At-Home Orders, Henry F. Fradella

ConLawNOW

Despite the fact that the steps the federal and state governments take to curtail the spread of the viral infection are presumably taken in the best interest of public health, governmental actions and actors must comply with the U.S. Constitution even during a pandemic. Some public health measures, such as stay-at-home orders, restrict the exercise of personal freedoms ranging from the rights to travel and freely associate to the ability to gather in places of worship for religious services. This Essay explores several completing doctrines that might justify the authority of law enforcement to stop people who are out of …

Masterpiece's Equal Treatment Of The Religious And Expressive Freedoms Under The First Amendment, Hwi Won Kim

Maurer Theses and Dissertations

This thesis aims at examining the validity of free speech claims for religious exemptions on the one hand and reviewing the Masterpiece Court's holdings on the current complex entanglement of religious exemption theories, on the other hand; and finally, it also provides a possible suggestion for co-existing between two constitutional values without an all-or-nothing solution.

As to the free speech argument, the Court would likely decide that a compelled speech argument should succeed if, and only if, the vendor’s good or service is expressive under the Free Speech Clause. For a baker, the Court would protect making a custom cake …

Diploma Privilege And The Constitution, Claudia Angelos, Sara Berman, Mary Lu Bilek, Carol Chomsky, Andrea A. Curcio, Marsha Griggs, Joan W. Howarth, Eileen Kaufman, Deborah Jones Merritt, Patricia E. Salkin, Judith Wegner

SMU Law Review Forum

The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.

State Supreme Courts are …

Executive Privilege - With A Catch: How A Crime-Fraud Exception To Executive Privilege Would Facilitate Congressional Oversight Of Executive Branch Malfeasance In Accordance With The Constitution's Separation Of Powers, Anthony W. Wassef

Cornell Law Review

A crime-fraud exception to assertions of executive privilege in response to congressional subpoenas would help level the playing field between the two branches in those moments when Congress is most needed to serve as a check and balance on the executive branch. A crime-fraud exception would signal to executive branch officials that executive privilege will not conceal their malfeasance; would counteract hyperpartisanship as a force that insulates executive branch officials from the consequences of their actions; and would rein in the expansive reach of protective assertions of executive privilege. For years, Congress has surrendered power to the executive branch. A …

Big M’S Forgotten Legacy Of Freedom, Jamie Cameron

Articles & Book Chapters

Part of a collection of papers on section 2’s “forgotten freedoms” (forthcoming (2020), 100 S.C.L.R.(2d)), “Big M’s Forgotten Legacy of Freedom” returns to the Supreme Court of Canada’s foundational concept of freedom as the absence of coercion or constraint. That early and important legacy of freedom under the Charter failed to inspire and influence the evolution of section 2, especially section 2(b)’s guarantee of expressive freedom and section 2(d)’s guarantee of associational freedom. This paper both claims and demonstrates that section 2’s fundamental freedoms have been less meaningful as a result. In doing so, it places emphasis on …