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Due Process People V. Scott (Decided June 5, 1996)

Touro Law Review

No abstract provided.

Supreme Court Queens County

Touro Law Review

No abstract provided.

Double Jeopardy

Touro Law Review

No abstract provided.

Double Jeopardy Supreme Court Appellate Division Second Department

Touro Law Review

No abstract provided.

Double Jeopardy

Touro Law Review

No abstract provided.

Symposium: 50 Years With The 25th Amendment: The Role Of The White House Counsel In The Twenty-Fifth Amendment: Advising On Presidential Disability, Nancy Kassop

ConLawNOW

This article examines the role of the White House Counsel in counseling and advising the President and administration about the provisions of the Twenty-fifth Amendment providing for removal of the President when the President is unable to perform the duties of office. Throughout the amendment's history, presidents and their advisors have been reluctant to formally invoke it, fearing that a public admission of "disability" will weaken a president's political influence. The White House Counsel must often navigate between the legal and constitutional requirements of the amendment, on the one hand, and considerations of a President's continued political viability, on the …

Penny Wise But Pound Foolish: How Permanent Supportive Housing Can Prevent A World Of Hurt, Lavena Staten, Sara Rankin

Homeless Rights Advocacy Project

People experiencing chronic homelessness are trapped in a cycle of homelessness and trauma. Traditional approaches to homelessness attempt to address people’s trauma first and use housing as a reward for complying with treatment; such approaches fail because people cannot improve physically or psychologically while they are actively experiencing the trauma of homelessness. Our current responses to chronic homelessness do not work, but cities often justify the status quo as the only fiscally responsible option. Instead, these approaches are among the most expensive and least effective.

Permanent Supportive Housing (PSH) flips the traditional order in which homelessness and trauma are addressed …

Canada's Assisted Human Reproduction Act: Pragmatic Reforms In Support Of Research, Tania M. Bubela, Erika Kleiderman, Zubin Master, Ubaka Ogbogu, Vardit Ravitsky, Amy Zarzeczny, Bartha Maria Knoppers

Office of the Provost

Canada's Assisted Human Reproduction Act is long overdue for Parliamentary review. We argue that the current regulation of research using human reproductive materials is not proportionate, not responsive to the uncertain threats posed to human and environmental health and safety, and is not considerate of diverse values in a democratic society. We propose tailored regulatory carve-outs for in vitro research for currently prohibited activities, such as gene editing, and for the exercise of Ministerial Discretion for access by Canadians to experimental in vivo interventions that are currently prohibited, such as mitochondrial replacement therapy. Our recommendations are bounded by constitutional constraints …

Authors’ Response: An Enquiry Concerning Constitutional Understanding, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

One of Professor Lawson’s first students, alluding to a 1985 article with the provocative title “Why Professor [Marty] Redish Is Wrong about Abstention,” declared that his ambition was to inspire someone to write an article entitled “Why [the student] Is Wrong about XXX.” The student claimed that, regardless of what filled in the “XXX,” this event would be the pinnacle of academic accomplishment.

If that view is even close to the mark, then having an entire conference devoted to explaining why Professors Lawson and Seidman are wrong about the Constitution is an extraordinary honor. In all seriousness, we are genuinely …

Fiduciary Constitutionalism: Implications For Self-Pardons And Non-Delegation, Ethan J. Lieb, Jed Handelsman Shugerman

Faculty Scholarship

The idea that public servants hold their offices in trust for subject-beneficiaries and that a sovereign's exercise of its political power must be constrained by fiduciary standards-like the duties of loyalty and care-is not new. But scholars are collecting more and more evidence that the framers of the U.S. Constitution may have sought to constrain public power in ways that we would today call fiduciary. In this article, we explore some important legal conclusions that follow from fiduciary constitutionalism.

After developing some historical links between private fiduciary instruments and state and federal constitutions, we opine on what a fiduciary constitution …

Having Your Cake And Eating It Too? Religious Freedom And Lgbtq Rights, Stephen Matthew Feldman

Faculty Articles

In Obergefell v Hodges Justice Anthony Kennedy wrote for a majority holding that samesex couples enjoy a constitutional right to marry as part of substantive due process Yet in Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission his majority opinion held that the Free exercise Clause invalidated government sanctioning of a baker who had refused to bake a cake for a samesex couples wedding reception In both cases the Court reasoned that the government must maintain neutrality when confronted with competing viewpoints The Masteriece Cakeshop Court concluded the state Civil Rights Commission had violated this requirement by impugning the bakers …

Juliana V. United States, Daniel Brister

Public Land & Resources Law Review

In 2015, a group of adolescents between the ages of eight and nineteen filed a lawsuit against the federal government for infringing upon their civil rights to a healthy, habitable future living environment. Those Plaintiffs in Juliana v. United States alleged that the industrial-scale burning of fossil fuels was causing catastrophic and destabilizing impacts to the global climate, threatening the survival and welfare of present and future generations. Seeking to reduce the United States’ contributions to atmospheric carbon dioxide, Plaintiffs demanded injunctive and declaratory relief to halt the federal government’s policies of promoting and subsidizing fossil fuels, due to the …

Symposium: 50 Years With The 25th Amendment: Celebrating The Presidential Inability Provisions Of The Twenty-Fifth Amendment, Joel K. Goldstein

ConLawNOW

The presidential inability provisions of the Twenty-fifth Amendment to the United States Constitution represent an important contribution to ensuring presidential continuity. The framers of the Amendment responded in a thoughtful and effective way to a series of problems which history had disclosed which had made past officials reluctant to transfer presidential powers even from clearly disabled presidents. Adoption of the Amendment represented an impressive legislative accomplishment. The presidential inability provisions provide clear, workable and reasonable procedures which allow government officials to handle a range of scenarios involving presidential incapacity.

The Second Amendment As A Fundamental Right, Timothy Zick

Faculty Publications

The Second Amendment has been suffering from an inferiority complex. Litigants, scholars, and judges have complained that the right to keep and bear arms is not being afforded the respect and dignity befitting a “fundamental” constitutional right. They have asserted that, both on its own terms and relative to rights in the same general class, the Second Amendment has been disrespected, under-enforced, and orphaned. They have argued that courts have treated the Second Amendment as “peripheral,” “fringe,” “anachronistic,” “second rate,” and “second-class.” The Second Amendment has been described as “the Rodney Dangerfield of the Bill of Rights” and even compared …

Hardball Vs. Beanball: Identifying Fundamentally Antidemocratic Tactics, Jed Handelsman Shugerman

Faculty Scholarship

The “constitutional hardball” metaphor used by legal scholars and political scientists illuminates an important phenomenon in American politics, but it obscures a crisis in American democracy. In baseball, hardball encompasses legitimate tactics: pitching inside to brush a batter back but not injure, hard slides, hard tags. Baseball fans celebrate hardball. Many of the constitutional hardball maneuvers previously identified by scholars have been legitimate, if aggressive, constitutional political moves. But the label “hardball” has been interpreted too broadly to include illegitimate, fundamentally undemocratic tactics. I suggest a different baseball metaphor for such tactics: beanball, pitches meant to injure and knock out …

Originalism And Structural Argument, Thomas B. Colby

Northwestern University Law Review

The “new originalism” is all about the text of the Constitution. Originalists insist that the whole point of originalism is to respect and follow the original meaning of the text, and that originalism derives its legitimacy from its unwavering focus on the text alone as the sole basis of higher law. And yet, many leading Supreme Court decisions in matters of great importance to conservatives—in opinions authored and joined by originalist judges, and often praised by originalist scholars—are seemingly not grounded in the constitutional text at all. They rest instead on abstract structural argument: on freestanding principles of federalism and …

Originalism And A Forgotten Conflict Over Martial Law, Bernadette Meyler

Northwestern University Law Review

This Symposium Essay asks what a largely forgotten conflict over habeas corpus and martial law in mid-eighteenth-century New York can tell us about originalist methods of constitutional interpretation. The episode, which involved Abraham Yates, Jr.—later a prominent Antifederalist—as well as Lord Loudoun, the commander of the British forces in America, and New York Acting Governor James De Lancey, furnishes insights into debates about martial law prior to the Founding and indicates that they may have bearing on originalist interpretations of the Suspension Clause. It also demonstrates how the British imperial context in which the American colonies were situated shaped discussions …

Customs, Immigration, And Rights: Constitutional Limits On Electronic Border Searches, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of any criminal activity, …

Twenty-Week Bans, New Medical Evidence, And The Effect On Current United States Supreme Court Abortion Law Precedent, Shea Leigh Line

Idaho Law Review

No abstract provided.

How And Why Idaho Terminated Term Limits, Scott W. Reed

Idaho Law Review

No abstract provided.

Drawing The Lines: Regulation Of Automatic License Plate Readers In Virginia, Julia M. Brooks

Richmond Journal of Law & Technology

Since the 1990s, police departments and private companies across America have located vehicles and tracked individuals using automatic license plate readers. Part I provides an introduction to these readers and their use by law enforcement agencies. The problems with the use of these readers and the substantial relationship between public and private actors in their use are discussed in Part II. Part III discusses the options on how to regulate both these readers and the data collected through their use. Part III also examines the potential impact of Neal v. Fairfax County Police Department, a recent Supreme Court of Virginia …

“High Crimes And Misdemeanors”: A Constitutional Critique Of The Commander-In-Chief, Emma Pugh

Compass: An Undergraduate Journal of American Political Ideas

The Impeachment Clause of the U.S. Constitution has been subject to competing interpretations. Whether impeachment is understood as a legal or a political process will have a great impact on future impeachment proceedings in the United States.

Author information: Emma Pugh is a senior at Samford University in Birmingham, AL. She is studying English and Political Science and is interested in how the two disciplines intersect. She completed this paper prior to the 2019 impeachment inquiry.

A Patent Reformist Supreme Court And Its Unearthed Precedent, Samuel F. Ernst

Fordham Intellectual Property, Media and Entertainment Law Journal

How is it that the Supreme Court, a generalist court, is leading a project of innovation reform in our times while the court of appeals established to encourage innovation is having its precedent stricken down time and again? This decade the Supreme Court has issued far more patent law decisions than in any decade since the passage of the Patent Act of 1952. In doing so, the Supreme Court has overruled the Federal Circuit in roughly threequarters of the patent cases in which the Supreme Court has issued opinions. In most of these cases, the Supreme Court has established rules …

State Preemption And Single Use Plastics: Is National Intervention Necessary?, Ethan D. King

PEEL Alumni Scholarship

No abstract provided.

An Ace Up Their Sleeve Or A House Of Cards: Can The Epa's Affordable Clean Energy Rule Withstand Chevron Deference?, Shannon Zaret

PEEL Alumni Scholarship

The U.S. Court of Appeals for the District of Columbia (D.C. Circuit) is poised to become a prime battleground in a fight over the scope of the Environmental Protection Agency 's (EPA) authority to regulate greenhouse gas emissions (GHGs) from the power sector under the Clean Air Act (CAA). The dispute stems from the EPA's recent efforts to replace the Obama-era Clean Power Plan (CPP) with the Affordable Clean Energy Rule (ACE Rule). This move was quickly challenged by a coalition of twenty-nine cities and states as well as several prominent American health associations. The two rules reflect very different …

Originalism And The Law Of The Past, William Baude, Stephen E. Sachs

Faculty Scholarship

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.

This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of …

Criminal Law/Constitutional Law—Article 26 Of The Massachusetts Declaration Of Rights: The Supreme Judicial Court’S “Cruel” And “Unusual” Neglect Of Its Longevity Component, Thomas H. Townsend

Western New England Law Review

Article 26 of the Massachusetts Declaration of Rights, which prohibits “cruel or unusual punishments,” is arguably broader in scope than its federal counterpart, the Eighth Amendment to the United States Constitution. In addressing constitutional challenges to the length of incarceration sentences, the Massachusetts Supreme Judicial Court utilizes essentially the same test under Article 26 as the United States Supreme Court does under the Eighth Amendment. Among other considerations, the tests compare the subject sentence of a crime to the potential sentences for more serious crimes within the same jurisdiction, as well as to the prescribed sentences for the same crime …

Workers’ Compensation/Constitutional Law—Opt-Out And The Fourth Era Of Workers’ Compensation: Has Industry Left The Bargaining Table?, Daniel E. Walker

Western New England Law Review

Over the past decade, state legislatures have been actively exploring politically feasible ways to lower workers’ compensation insurance costs on employers. In 2013, Oklahoma made a bold move and adopted the Oklahoma Employee Injury Benefit Act (OEIBA) which enabled employers to “opt-out” of Oklahoma’s workers’ compensation system if they administered alternative benefit plans governed by the Employee Retirement Income Security Act (ERISA). The plans allowed for the retention of tort immunity for employers. Ultimately, the Oklahoma Supreme Court held the OEIBA unconstitutional for violating the Oklahoma Constitution’s ban on “special laws.”

This Article outlines three distinct historical eras of state …

First Amendment Rights—“See Ya In Boston, Bruh”: Making The Link Between The Right To Petition, Activism, And The Massachusetts Anti-Slapp Statute, Heidi K. Waugh

Western New England Law Review

Conceptual understandings of political engagement in the digital age continue to evolve as social media and the real-time web reconfigure the ways in which we exchange information. Despite the increasing application of e-campaigns, online petitions, and large-scale digital protests, reciprocity between the governed and the government continues to endure as the hallmark of representative democracy. The right to petition, contained within the final clause of the First Amendment, embodies this central tenet and constitutes the core of the Massachusetts Anti-SLAPP Statute—legislation that provides a special motion to dismiss lawsuits designed to chill public participation in government.

Massachusetts anti-SLAPP jurisprudence is …

Death, Law & Politics: The Effects Of Embracing A Liberty-Restrictive Vs. A Liberty-Enhancing Interpretation Of Habeas Corpus, Marvin L. Astrada

University of Baltimore Law Review

No abstract provided.